February 5, 2008

Reclaiming Justice

March 2013

IDC 13/124 03/22/2013 The Sixth Amendment Center seeks to ensure that no person faces potential time in jail without first having the aid of a lawyer with the time, ability and resources to present an effective defense, as required under the United States Constitution. We do so by measuring public defense systems against established standards of justice. When shortcomings are identified, we help states and counties make their courts fair again in ways that promote public safety and fiscal responsibility.

Cover photo: Carson City, Main Street (c. 1870). Nevada Historical Society.

Sixth Amendment Center PO Box 15556 Boston, MA 02215

Published in the United States of America in 2013 by the Sixth Amendment Center

IDC 14/124 03/22/2013 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future

March 2013

Prepared for:

The Nevada Supreme Court Indigent Defense Commission

By:

Sixth Amendment Center P.O. Box 15556 Boston, MA 02215 www.sixthamendment.org

IDC 15/124 03/22/2013 In response to the Nevada Supreme Court’s concerns about the manner in which poor defendants are provided the right to counsel in criminal and juvenile delinquency cases and the quality of services rendered, the Court created the Indigent Defense Commission (IDC) through administrative order ADKT-411, issued on April 26, 2007. The IDC is composed of judges, prosecutors, defense attorneys, county executives and other criminal justice stakeholders and is charged with studying how counties provide services and recommending to the Court appropriate changes.

ii Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 16/124 03/22/2013 Preface

erious problems exist today in rural every single day of the year, weekends and hol- Nevada when it comes to providing idays included. If your family member or neigh- Sattorneys to poor people who face bor or colleague was accused of a crime, would the potential loss of liberty at the hands of the you want them to have an attorney with no time criminal justice system. The indigent accused to do anything other than simply pass along may sit in jail for several weeks or even months, whatever plea deal the prosecutor has offered? waiting to speak to an attorney while witnesses’ memories fade and investigative leads go cold. Since 2008, numerous Nevada Supreme Court Once the defendant is appointed an attorney, administrative orders have improved the right that individual defendant may be one of several to counsel in the state’s urban centers. This hundred who are all vying at the same time for is most notable in Clark County (Las Vegas), the attention of that single attorney. Worse, the where public defender caseloads are now rea- overburdened attorney will often have financial sonable, the conflict assigned counsel panel is conflicts that pit his ability to put food on his free of undue judicial interference, and attorney family’s dinner table against his ethical duty to contracts do not impose financial incentives for zealously advocate solely in the best interests attorneys to do as little work as possible on a of his client. case. But fixing the “crisis” in rural Nevada has proven to be more difficult. There are a wide In 2007, the Nevada Supreme Court es- variety of reasons for this, including a lack of at- tablished an Indigent Defense Commission torneys to do the work, the geographic expanse (“Commission”) to examine and make recom- of most rural counties, and limited infrastructure mendations regarding the delivery of constitu- to train and evaluate attorneys. Perhaps most tionally required indigent defense services in importantly, though, most rural Nevada counties Nevada. The following year, the Commission’s have insufficient resources to keep pace with Rural Subcommittee went on record that “rural the United States Supreme Court as it contin- counties are in crisis in terms of indigent de- ually clarifies and expands the responsibilities fense,” noting that one county in particular has that attorneys owe to their clients under the an annual public defense attorney caseload of Sixth Amendment. “almost 2,000 per contract lawyer.” Not even the most competent lawyer on earth can effec- In August 2012, Chair of the Commission and tively open, investigate, and dispose of cases then-Chief Justice of the Nevada Supreme at a rate of nearly five and a half cases per day, Court Michael Cherry asked the Sixth Amend-

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future iii IDC 17/124 03/22/2013 ment Center (“6AC”) to suggest a consensus But a funny thing happened on the way to approach toward achieving constitutional- making that argument. In researching the foun- ly required provision of the right to counsel dation of Nevada’s libertarian culture, the 6AC throughout the state, and in the rural counties discovered that the state’s judicial and legisla- specifically. The 6AC originally envisioned tive history is rich with a commitment to equal advocating for the creation of a permanent access to justice for poor people in criminal indigent defense commission to administer right proceedings; a state commitment that far pre- to counsel services in those counties where no dates any federal action on the issue. Indeed, public defender office is required under Nevada as early as 1875 to 1879 Nevada was the very Revised Statutes 260.010. That is, Clark (Las first state in the union to authorize the appoint- Vegas) and Washoe (Reno) counties would ment of attorneys in all criminal matters, includ- be exempt from state oversight by a perma- ing misdemeanors, and the required payment of nent commission, while the remaining counties attorneys for the services rendered. would be relieved of the burden of financing the state’s requirement to provide indigent The father of the right to counsel in Nevada, defendants with effective lawyers in exchange Thomas Wren, epitomizes the rugged individu- for state supervision of local public defense alism that is characteristic of Nevadans. Wren services. And, though our final recommenda- was a self-made man, who rose from abject tions closely align with that projected aim, the poverty as an orphan to eventually serve as reasons why Nevadans should support these the state’s lone U.S. Congressman from 1877 recommendations changed significantly as we to 1879. Interestingly, Wren was a prosecutor conducted our work. from Austin, in Lander County, then Nevada’s second largest city, before he became a state The 6AC started out with the intent to place assemblyman from Eureka. And far from being the right to counsel in its historical libertarian a bleeding heart, Wren argued on the floor of context. The argument goes: the Bill of Rights the Assembly for the expanded use of capital was created to protect the individual from punishment during the same legislative session overreaching by big government. Just as the that he cemented Nevada’s commitment to the Second Amendment guarantees the individu- right to counsel. As Wren demonstrated, being al the right to bear arms to protect liberty and a law-and-order prosecutor does not require is a check against the potential tyranny of big one to resist indigent defense improvements. government, so too does the Sixth Amendment protect an individual’s liberty from overreach- Nevada also has its own Clarence Earl Gideon. ing by the massive machinery of governmental Gideon was the man who challenged a Florida law enforcement. Our hope was that Nevada court’s decision to deny him an attorney. His criminal justice stakeholders and policymakers travails eventually led the United States Su- would view the right to counsel as something preme Court, in March of 1963, to hand down well within Nevada’s own uniquely libertarian the landmark case of Gideon v. Wainwright that worldview and support recommended changes. requires all states to provide competent representation to poor people facing felony charges

iv Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 18/124 03/22/2013 in state courts. In Nevada, that man was Shep- The report also demonstrates that the serious herd L. Wixom. His story, told in the following systemic deficiencies plaguing rural counties, pages, did not result in his freedom (as Gide- detailed in the second part of the report, are on’s story did). However, it did lead the Nevada a relatively recent development (beginning Supreme Court in 1877 to strengthen the right in 1975) and a turning away from Nevada’s to counsel law that Wren had introduced two longstanding history of ensuring equal justice years prior. to people of insufficient means. We hope the recommendations set out in Reclaiming Jus- The first part of our report, Reclaiming Jus- tice contribute to the restoration of Nevada’s tice, details the history of the right to counsel deep-rooted commitment to due process and in Nevada. We believe this story shows that that justice in rural Nevada will – once again – the people of Nevada have always viewed the no longer depend on the amount of money one right to counsel not as a federal mandate to be has in his pocket. resisted, but as a bedrock principle upon which the state was founded. Nevadans should em- brace this history and this view today.

Acknowledgements

he Sixth Amendment Center (6AC) amended versions of Thomas Wren’s Assembly acknowledges the Nevada Supreme Bill 122 (1875), which authorized payment to TCourt’s Rural Courts Coordinator and appointed counsel, and she unearthed the pris- Court Services Supervisor, John McCormick, on records and pardon requests of Shepherd for his supervision of this project. Mr. McCor- L. Wixom. She also tracked down biographical mick is one of a number of Nevadans providing information on Thomas Wren contained in the significant assistance in the research and writ- only known copy of a short-lived Virginia City ing of this report. periodical, Nevada Monthly, at the Huntington Library in San Marino, California. We would Natacha Faillers, Archives Assistant of the have known little of the motivations of Wren for Nevada State Archives, found the original and supporting the right to counsel had not Anita

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future v IDC 19/124 03/22/2013 Lawson Weaver, an Assistant in the Rare Book he assisted Mr. Maher of the Nevada Histori- Department of the Huntington Library, gener- cal Society in tracking down local newspaper ously copied the periodical for us. accounts of the Wixom trial that confirmed Mr. Earl’s earlier work. Assembly Bill 122 (1875) took on new signifi- cance when the Nevada Supreme Court hand- Finally, this report simply could not have been ed down In re Wixom in April of 1877. Paula written without the support and guidance of Doty, Assistant Librarian at the Nevada Su- former Nevada State Archivist Guy Rocha. Mr. preme Court Library, went through the Court’s Rocha provided us with key contacts through- microfilm records to find the original briefs. out the state and suggested numerous avenues Though there is a gap in the microfilm reel, Ms. of research for us to trove. Most importantly, Doty employed the assistance of Ms. Faillers he gave generously of his time and energy at the State Archives and diligently found the during numerous phone calls and e-mail ex- original paper documents. changes, where he not only acted as an objec- tive sounding board, but also provided needed Our understanding of the political and social encouragement enabling the 6AC to connect culture in Nevada’s early days as the western the dots of what occurred in Lander County part of the Utah Territory was greatly aided over a hundred and forty years ago. by materials sent by Michael Maher and Juil Dandini of the Nevada Historical Society. The 6AC is also significantly indebted to historian Michael Makley. Nevada’s desire for statehood was in many ways triggered by a longing on the part of the populace of the Carson Valley for a justice system that was neither meted out by vigilance committees nor in the control of Mor- mon leadership seated some 500 miles away in Salt Lake City. Our knowledge of this dynamic was greatly enhanced by Makley’s book, The Hanging of Lucky Bill (which he sent to us free of charge).

A 1991 article by Nevada historian Phillip I. Earl led the 6AC to question some of the facts surrounding the trial of Mr. Wixom. Mr. Earl spoke to us at some length about stagecoach and train robberies in 19th century Nevada, and

vi Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 20/124 03/22/2013 Contents

Chapter 1: An Arrest in Battle Mountain 1

Chapter 2: The Sixth Amendment to the United States Constitution 3

Chapter 3: Nevada Statehood and its Emerging System of Justice 7

Chapter 4: The Right to Counsel in Nevada Established 13

Chapter 5: Would a Competent Attorney have helped Wixom? 19

Chapter 6: The Current Indigent Defense Crisis in Rural Nevada 25

Chapter 7: Recommendations 33

Endnotes 37

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future vii IDC 21/124 03/22/2013 Wells Fargo Stage (c. 1870). Nevada Historical Society.

viii Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 22/124 03/22/2013 Chapter 1 An Arrest in Battle Mountain

n November 7, 1873, a thirty-year-old the stolen coat. He fit the general description. harness-maker was arrested in Battle He was an ex-felon. He was guilty. OMountain, Nevada.1 He was wearing a uniquely identifiable coat that was commis- This was the height of the Wild West. And, sioned from a haberdashery in San Francisco, though the October 7, 1873 edition of Virginia and destined for the Manhattan Silver Mining City’s Territorial Enterprise reported that “stage Company, before it was stolen during one of a robberies have become so common in Eastern series of stagecoach heists conducted over the Nevada that they are scarcely worth noticing,”3 prior two months. the citizenry of Austin was fed up. Between September 27 and November 1, 1873, the Shepherd L. Wixom,2 the man arrested, was no Woodruff & Ennors stagecoach line – the com- saint. He had already been charged with horse pany carting passengers and cargo between stealing once and spent time in the Nevada such mining towns as White Pine, Eureka, and State Prison for helping an accused murderer Virginia City4 – had been held up five times. to escape from the Lander County jail. He had Each time, the robbers demanded and broke open the Wells, Fargo & Company “treasure box”5 that often accompanied the driver of the stage. After the last of the five hold- ups, Wells, Fargo & Company posted a $500 reward for the capture of any “road agent”6 associated with the thefts.

Upon his arrest at Battle Mountain, Wixom demanded to be brought before the nearest committing magistrate for a preliminary examination because he Stagecoach outside the Warm Springs Hotel (c. 1860’s). Hotel was used as the Nevada wanted to procure material Territorial Capitol in 1861. Courtesy of the Nevada State Library and Archives. witnesses that would help

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future 1 IDC 23/124 03/22/2013 to absolve him of the crime. Sheriff Emery de- trial.”8 But these were the days when judges nied his request. Instead, Wixom was brought rode circuits by horseback and the thousands to Austin and jailed.7 of miles of trails connecting the mining towns of eastern Nevada did not lend themselves to the In 1873, the Nevada court system was still in dispensation of justice at anything approaching its infancy. Less a rapid pace. Be- than ten years Why would Shepherd sides, all felony had elapsed Wixom think he had a prosecutions since Nevada in Nevada had was accepted legal right to an attorney to occur by into the United in 1874 Nevada? indictment, so States and had there was the adopted its state need to empanel constitution, so the Nevada courts were es- a grand jury of twenty-four men before Wixom tablishing precedent with every passing case. could be arraigned.9 Accordingly, Wixom sat in Under the laws of criminal practice of the time, jail through Thanksgiving and into the dawn of Wixom was entitled to a “speedy and public 1874.

On January 7, 1874, Wixom finally got his day in court. He was arraigned on a Wednesday in front of the Honorable DeWitt C. McKenney. The judge scheduled the trial for five days out, on the following Mon- day. Besides his not guilty plea, Wixom only made one statement: “Defendant objects to the time of trial and to the legality of his being tried without counsel.”10

Why would Wixom think he had a legal right to an attorney in 1874 Nevada? It would be nearly 90 years before the United States Supreme Court guaranteed poor people the right to counsel in felony cases, with its landmark decision in Gideon v. Wainwright.11 An- swering that question requires an historical understanding of both the Sixth Amendment to the United States Constitution as it was Official minutes of the Lander County District Court in the generally understood at the time of Wixom’s case of State of Nevada vs. Shepard L. Wixan. Courtesy of the arraignment and more specifically the state Nevada State Library and Archives. of criminal justice in the 1870’s in Nevada.

2 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 24/124 03/22/2013 Chapter 2 The Sixth Amendment to the United States Constitution

or the signers of the Declaration of justice enshrined in the first ten amendments to Independence, liberty was the univer- the United States Constitution that were rati- Fsal notion that every person should fied by the states in 1791. Years earlier, John determine their own path to happiness, free Adams had risked his reputation for these very from undue governmental control.12 Patrick ideals by defending in court the British soldiers Henry preferred death to living without it.13 In involved in the Boston Massacre, stating that fact, liberty is so central to the idea of American a defense lawyer ought to be the last thing a democracy that the framers of our Constitu- person should be without in a free country.15 tion created a Bill of Rights to protect personal liberty from the tyranny of big government. All Why did Adams and other patriots believe so people, they argued, should be free to express fervently in the primacy of the right to counsel unpopular opinions or choose their own religion to due process? The answer comes from an or take up arms to protect their home and fam- understanding of the English common law sys- ily without fear of retaliation from the state. As tem, out of which most American jurisprudence Thomas Jefferson wrote in 1787, “a bill of rights evolved. England’s courts, during the American is what the people are entitled to against every pre-colonial period, were going through government on earth, general or particular, and a transition away from what no just government should refuse.”14

Preeminent in the Bill of Rights is the idea that no one’s liberty can ever be taken away without the process being fair. A jury made up of everyday citizens, protection against self-incrimination, and the right to have a lawyer advocating on one’s behalf are all American ideas of John Trumbull, The Declaration of Independence, 4 July 1776. Yale University Art Gallery, Trumbull Collection, 1832.3.

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future 3 IDC 25/124 03/22/2013 what we today call the inquisitorial model of of guilt was never going to work here. The criminal justice. Still in use in France and else- Enlightenment was in bloom and people had where in Europe today, the inquisitorial model begun questioning the tyranny of the crown, so sets about finding the truth behind an alleged the colonial settlers were, perhaps, predisposed crime by having the judge who is in charge of to take a more adversarial approach to criminal all proceedings directly question the witnesses justice. The people of the new American colo- for both the victim and the defendant. Lawyers, nies were suspicious of concentrated power in if they were involved at all the hands of a few. An indi- in English courts vidual’s right to liberty during this time, A defense lawyer was self-evident, generally played ought to be the last thing and there need- a limited role. a person should be without ed to be a high For example, threshold to allow there was no in a free country a court to take person we would away the liberty that recognize today as the the Creator had endowed prosecutor. Instead, the victim of a crime or his to each and every individual. The new colonies family was permitted to hire a lawyer to act as were not going to set up justice systems that prosecutor, but few could afford the cost. And would railroad defendants simply because the so the judge dominated the proceedings. accused was ignorant of the law.

Under the inquisitorial model, the judge act- As an example of the degree to which the New ed as the chief investigator and oversaw the World Americans were committed to the right to collecting of evidence, determining what was counsel, the following preamble accompanied reliable and what was unreliable. And, because the right to counsel law passed on March 11, the judge made final verdicts based on the 1660 in the colony of Rhode Island and Provi- evidence he himself collected, there was a pre- dence Plantations: sumption of guilt inherent in the trial proceedings. In the pre-colonial English system of jus- Whereas it doth appeaere that any tice, therefore, the burden of proof rested with person . . . may on good grounds, or the defendant accused of a crime to establish through mallice or envie be indicted his own innocence.16 Making that task harder, and accused for matters criminal, defense lawyers were specifically banned in wherein the person is so [accused] felony cases in England (and would continue to may be innocent, and yett, may not be until 1836). be accomplished with soe much wisdom and knowledge of the law to Because the European people that arrived on plead his own innocencye, & c. Be it the shores of America were, in many instances, therefore inacted . . . that it shall be those who had been subject to religious per- accounted and owned from hence- secution in European courts, the presumption forth the lawful privilege of any man

4 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 26/124 03/22/2013 that is indicted, to procure an attorney became sacrosanct. The federal government to plead any point of law that make for was obligated to enforce it for all time. clearing of his innocencye.17 At this point in history, the right to counsel was As defense lawyers became increasingly permissive. That is, the accused had the right involved in the early days of American juris- to have a lawyer present if the accused could prudence, procedural rules started to be writ- afford to hire one or could get one to represent ten down and codified. Evidence, including him for free, but a state did not have to appoint hearsay, could no longer be introduced without an attorney if the accused could not obtain his restraint. The presumption of guilt was in- own. The question of whether to appoint coun- creasingly contested. This was the birth of the sel to those of insufficient means was left up to adversarial system of justice that we recognize each state. As United States Supreme Court in our own country today.18 The adversarial Justice Louis Brandeis wrote in 1932: “It is one justice system is based on the simple notion of the happy incidents of the federal system that that the truth will best be made clear through a single courageous state may, if its citizens the back and forth debate of opposing perspec- choose, serve as a laboratory; and try novel tives. Indeed, this idea of competition soon social and economic experiments without risk to became the basis of American capitalism too. the rest of the country.”20 Nevada would be- So, when the North American colonies revolted come that courageous state in regard to equal from the crown, the right to counsel was quickly justice for the indigent accused. enshrined in all but one of the original thirteen state constitutions.19

If the right to counsel was state law, why was it important for the federal Congress to incor- porate this same right as an amendment to the U.S. Constitution? The citizens of the newly independent republic had created a federal government to administer the union of their respec- tive state governments. Having just liberated the Colonies from what they felt was the tyran- nical rule of the British government, the framers of our federal Constitution were loath to create a new tyranny in the form of the Union’s central government that could ignore – or worse, could abolish – these protections of personal liberty. Therefore, the Bill of Rights was created to protect the rights of the individual against an overreach of big government. With the ratifi- cation of the Bill of Rights, the right to counsel

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future 5 IDC 27/124 03/22/2013 Map of Oregon and Upper California, from the surveys of John Charles Fremont and other authorities (1948). Special Collections, University of Nevada, Reno Library.

6 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 28/124 03/22/2013 Chapter 3 Nevada Statehood & Its Emerging System of Justice

ntil 1848, the vast area separating and around the Great Salt Lake in 1847. While the Rocky Mountains and the Sierra still technically Mexico territory, the Mormons Nevada – commonly referred to in the had claimed most of the Great Basin as their U 24 nineteenth century as the “Great Basin” – was own, calling their new home “Deseret.” The claimed by Mexico.21 Mexico ceded the area to Mormons would provide a more structured ap- the United States under the terms of the Treaty proach to government, albeit one that detractors of Guadalupe Hidalgo that ended the U.S.-Mex- claimed simply benefited the church. ican War. The Great Basin was described as the place “filled with what the Lord had left over The people who had begun to settle on the when He made the world and what the Devil eastern slope of the Sierra Nevada (in and wouldn’t take to fix up hell.”22 The combination around present day Carson City) had more in of a desert terrain surrounded by harsh moun- common with California than with the Mormons. tain conditions proved to be inhospitable to all Despite this, they found themselves under the but the Native Americans and a few hearty- rule of the Latter Day Saints when California souled pioneers. That is, until gold was discov- became a state in 1850 and its official borders ered in California in 1849. stopped short of the eastern slope. The land of what is now northern Nevada was instead Between 1848 and 1850, the whole of the included in the newly formed Utah Territory and western United States was officially an unorga- its people were to be governed by the territorial nized territory. The region had no constitution government seated in Salt Lake City. or provisional government or justice system other than the law of “might makes right.”23 As Suffice it to say, the Mormons were not, at least fortune-seekers flooded into this region by the in the beginning, all too concerned with the thousands, two political forces took root that happenings on the eastern slope, by this time would forever shape criminal justice in Nevada. referred to as “Washoe” after the local Indian The first was the military provisional govern- tribe. In the void, “[t]here was little law in the ment running California at that time that, for territory,” and “treachery seemed to have been the most part, allowed justice to be meted out the controlling influence.”25 One early settler by vigilance committees. The other was the described Washoe thusly: “All kinds of roguery group of political refugees known as the Latter is going on here; men are doing nothing else Day Saints, or “Mormons,” that had settled in but steal horses, cattle, and mules.”26

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future 7 IDC 29/124 03/22/2013 In time, the Mormons would exert their authority the Mormons received favorable treatment.”29 by setting up various county structures and gov- The people of Washoe also felt defenseless in ernment systems, including courts. The Mor- the face of what they believed to be a biased mons named one of their own, Orson Hyde,27 justice system, as Brigham Young – the head of as the judge of the Carson region, but his au- the Mormons – moved settlers into Washoe to thority was never truly recognized in Washoe. A “insure election results.”30 series of failed attempts was made to annex the Carson region to California rather than be under The situation deteriorated in 1856 when an the control of people who owed their allegiance “armed mob of Mormons drove a U.S. District to a religious structure over 500 miles away.28 Judge from the territory”31 and began to defy This was a time of heightened anti-Mormonism other United States laws. Believing the Mor- and most of the people of Washoe preferred mons to be in open rebellion, then U.S. Presi- handling local justice on their own. “Newcom- dent James Buchanan sent troops toward Salt ers complained that they were not dealt with Lake expecting a war. Brigham Young called fairly under Utah’s justice system” and “that home all Mormons in anticipation of an epic

Wells, Fargo & Co.’s Express Office, Carson City (1865). Special Collections, University of Nevada, Reno Library.

8 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 30/124 03/22/2013 battle. Though the United States/Mormon war the hungry never were turned from his door.”35 never materialized, it did create a vacuum in Thorington’s willingness to befriend Mormons how governmental affairs were being conduct- put him at odds with the Ormsby-led vigilante ed. Washoe was again left alone, for the most committee that was squarely anti-Mormon. At part, to run its own affairs. the same time, more and more of the guests at Thorington’s ranch were outlaws from the newly By 1858, a vigilante committee had been set up emerging California justice system – a factor in the region to dispense justice. The leader of that Ormsby’s vigilante committee saw as con- the group was Major Ormsby.32 Ormsby was tributing to the lawlessness in the Carson area. instrumental in the movement to free Nevada For Ormsby, Lucky Bill had become public from the Utah territory. But his desire to take enemy number one. justice into his own hands was opposed by a number of anti-vigilante committees that, in So, when Thorington allegedly abetted a mur- turn, wanted either a more structured and dis- derer by letting him stay at his ranch, and passionate system of justice or some as-yet-un- allegedly helped to sell the stolen horse of the defined form of justice that did not give so much murdered man to – again allegedly – fund an power to people like Ormsby. One of these assassination attempt on Ormsby’s life, the anti-vigilantes was a man named “Lucky Bill” vigilante committee struck.36 On June 17, 1858, Thorington.33 Thorington was arrested by a mob numbering close to a hundred. The mob had already hung By all accounts, Lucky Bill was a prototype Ne- one person they mistakenly identified as the vadan: flamboyant, gracious, and hard-working. alleged murderer, but that did not stop their He earned his nickname by running games of on-going thirst for vengeful justice. A jury was chance and winning almost every time a chal- quickly made up of twelve members of Orms- lenger put big money on the table. He invested by’s vigilante committee, while others acted as his winnings in property, a toll road, cattle, a judge, sheriff, and prosecutor. The rest of the sawmill, and other endeavors in and around vigilante committee could be heard just outside Carson City. One contemporary described the barn in which Thorington was being tried, Thorington as “both generous and brave and constructing a gallows. Lucky Bill was execut- his sympathies were readily aroused in favor ed shortly after the jury brought back the guilty of the unfortunate: or which in frontier parlance verdict. would be termed ‘the under dog in a fight’ regardless of the causes that had placed the dog A modern reader cannot review the facts of in that position.”34 Thorington’s arrest, trial, and sentence without acknowledging the resounding truth of the U.S. Lucky Bill had no problem taking money in Supreme Court’s words in Powell v. Alabama, games of chance from either horse-thieves the country’s first major right to counsel case. or Mormon tithe-collectors, and he opened “The prompt disposition of criminal cases is his house freely to each. “His station was a to be commended and encouraged. But, in rendezvous where the weary found rest and reaching that result, a defendant, charged with

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future 9 IDC 31/124 03/22/2013 a serious crime, must not be stripped of his right 6,660 votes were cast in the territory in favor of to have sufficient time to advise with counsel making Nevada a state.41 and prepare his defense. To do that is not to proceed promptly in the calm spirit of regulated A constitutional convention was called for No- justice, but to go forward with the haste of the vember of the same year. On the second day, mob.”37 a committee of three people was appointed to work on the state constitution’s preamble, the Though the vigilantes successfully rid them- name of the state, the state seal and coat of selves of Thorington, the episode firmly turned arms, and the state’s Bill of Rights.42 Though the people of the Carson Valley against the vig- the naming of the state underwent some de- ilante committee. “[A]fter Thorington’s hanging bate, the right to counsel did not. On November almost all the vigilantes faded from the scene, 6, 1863, Section 8 of the Nevada Constitution while many of his friends remained (some of was proposed and adopted with no debate, en- whose descendants continue to reside in Car- suring from that day forward that “in any court son Valley).”38 Ormsby would die less than two whatever, the party accused shall be allowed years after Thorington’s death, killed while un- to appear and defend in person and with coun- dertaking one last act of vigilantism.39 Nevada sel” and that under no circumstances shall the was poised for a different approach to justice. accused be deprived of “life, liberty, or property, without due process.”43 Meanwhile, on the other side of the country, Abraham Lincoln assumed the office of the There was one small hiccup unrelated to the President of the United States and the nation right to counsel. The voters of Nevada sum- was thrown into civil war. As the people of the marily rejected the new constitution because it eastern slope sought to create a system of gov- was thought its taxation plan could negatively ernment free from Mormon influence and free affect the mining industry. Tax changes were from the rush to judgment so core to the vigilan- made in a subsequent convention held in 1864. te committees, the federal government desired The voters of the Territory of Nevada approved new states to help ensure Lincoln a second the Constitution on September 1, 1864, and no term. Tapping Nevada’s natural resources to changes were made to the right to counsel as it help fund the war effort was an added benefit, had been written the previous year. and Nevada was placed on the fast track for statehood. Interestingly, the 1864 Constitution included a new “paramount allegiance to the Federal Gov- In 1861, the United States approved creation of ernment” clause vowing Nevadans support of a Nevada Territory, essentially splitting the Utah federal powers “as the same have been or may Territory in two. Slightly less than 7,000 peo- be defined by the Supreme Court of the United ple lived in the entire Nevada Territory at that States.”44 This same clause remains in the Ne- time.40 Still, in September 1863, approximately, vada Constitution to this day, expressly commit-

10 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 32/124 03/22/2013 Birdseye panoramic of Carson City (c. 1870). Nevada Historical Society.

ting the state to support all right to counsel case judge to appoint an attorney whenever request- law handed down by the U.S. Supreme Court. ed by a defendant facing criminal charges. As a modern state attorney general ethics opin- Nevada was made a state on October 31, 1864, ion observed in reflecting upon this tradition, eight days before the Presidential elections and because “an indigent defendant unversed in in time to help re-elect Lincoln. The American the law” might be deprived of due process, the Civil War ended just months later, in early May Nevada courts “from the beginning” recognized 1865. their power to appoint lawyers for the poor.45 Furthermore, to the extent that Nevadans saw So what does all of this have to do with Shep- themselves as closely aligned with California, herd L. Wixom? With the still fresh memories that state had passed a sweeping right to coun- of Utah Territory justice that had lacked any sel statute on February 14, 1872.46 semblance of due process, by the 1870s the norm in Nevada appears to have been for the

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future 11 IDC 33/124 03/22/2013 Nevada State Penitentiary under construction (c. 1870). Nevada Historical Society.

There were also some quite practical reasons judges. So, when a criminal case came up, it to appoint counsel. Though it is tempting for a was frequently fairly convenient to appoint an 21st century mind to impose a modern-day no- attorney rather than have a defendant try to tion of criminal justice on the events occurring defend his own interests. in Lander County during the nineteenth century, in fact criminal justice then was much different Indeed, as will be revealed in a later chapter, in some very key ways. Criminal proceedings when Wixom’s case reached the Nevada Su- were actually quite rare in the 1870s. Trial preme Court in 1877, the Court admitted that judges would ride a circuit around the state, appointing attorneys for poor people in criminal hearing cases in one town one day and the next proceedings was a “common” and “perhaps town when he could get there, and any cases universal practice” in the state. It is no wonder that required the judge’s attention would simply Shepherd Wixom expected the judge to appoint have to wait until he next came to town. There him an attorney during his arraignment. were also relatively few attorneys, and those few often rode circuits side-by-side along with

12 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 34/124 03/22/2013 Chapter 4 The Right to Counsel in Nevada Established

uring Shepherd Wixom’s arraignment, reaching a verdict of guilty – all within a single Judge McKenney surveyed the court- evening.51 The main testimony against Wixom Droom as was the common practice in came from Sheriff Emery. When the Sheriff Nevada to see if any attorneys were present examined a second coat ordered by the Man- and willing to assist Wixom’s defense.47 But hattan Silver Mining Company and compared it when there were no such attorneys present, to the coat Wixom was wearing when arrested Judge McKenney was not about to slow down at Battle Mountain, Sheriff Emery determined justice to find one. Instead, he allowed Wixom that “[t]hey were as like as two eggs.”52 The to work with a non-lawyer to help prepare his Territorial Enterprise reported that, although defense as best he could.48 Wixom acted as his own defense counsel, he conducted his “case with marked ability, proving Five days later, on January 12, 1874 at 5 himself a perfect success as a cross-examiner, o’clock in the afternoon, the trial of Shepherd but his cunning availed him not.”53 There could Wixom began. There is little that remains in the be no conclusion but that Wixom had taken the historical record about the trial, other than that coat along with other goods and money from “justice was swift.”49 We do know Wixom told the stagecoaches he had robbed. Judge McKenney that he was not prepared for the trial because he had been denied a lawyer. The next morning the Sacramento Daily Union We also know Wixom asked for the trial to be reported that highwayman Wixom was convict- delayed, claiming as he had at the time of his ed and, rather than face a return to the Nevada arrest that there were witnesses who could State Prison, Wixom attempted to hang himself provide testimony that Wixom was not the no- in his cell using his own socks. “The alarm was torious road agent who had been terrorizing the given by another prisoner, and officers cut the stagecoach company. And, Wixom reminded socks from Wixom’s neck in time to save his the court again that his witnesses could not be life.”54 Wixom was promptly sentenced to ten reached because the court denied him coun- years at hard labor at the state penitentiary. sel.50 Under the rules of criminal procedure in 1874 Judge McKenney was not persuaded. He de- Nevada, “[a]n appeal must be taken within three nied the continuance and proceeded to trial. A months after the judgment was rendered.”55 jury was empanelled, the trial occurred, and the Without a lawyer, Wixom was ignorant of this jury deliberated for all of fifteen minutes before fact and was not able to challenge the constitu-

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future 13 IDC 35/124 03/22/2013 tionality of his trial on direct appeal because the the representative from Eureka. He would later deadline lapsed. serve as the Nevada’s lone U.S. Congressman from 1877 to 1879, but in 1875 he was passion- ately and persuasively arguing in the Nevada Assembly Bill 122 (1875) Assembly.

While Shepherd Wixom served time in prison “The love of life is the strongest feeling implant- without a lawyer, the Nevada legislature was at ed in the breast of man. The fear of losing it work in 1875. The Chairman of the Judiciary tends to prevent the commission of crime, by Committee in the Assembly was Thomas Wren. bad men, far more powerfully than any other A self-made man, Wren was orphaned at a punishment that can be devised. It is certainly young age and what little property that was left far more effective than imprisonment for life.”57 to him was swindled away by a lawyer retained Thomas Wren uttered these words during de- to look after his best interests.56 Rather than bate on a bill that sought to curtail the use of the ruing his life, Wren set off for California in the death penalty in favor of lifetime imprisonment. gold rush and worked tirelessly in the mines As a former prosecutor, it is not surprising that before apprenticing to become a lawyer. He Wren took such a position in the debate. Wren eventually moved to Austin, in Lander County, was one of the day’s leading Republicans and Nevada, where he was the city attorney and widely viewed as an expert on the law. His per- prosecutor from 1864 to 1866. Subsequently, spective, that “murders would not be so com- Wren was elected to the Nevada Assembly as mon if the death penalty, in punishment of the crime, was more certain and frequent,” carried the day as the bill to curtail the death penalty was defeated.58

What is surprising, however, is that Wren, who was such a staunch proponent of tough criminal sanctions, authored another bill in the very same session to authorize the appointment and payment of defense counsel to assist those accused of crimes who could not afford an attorney. The bill presumed, as was the case, that attorneys were appointed regularly in Nevada and it sought to have them paid for their work. Assembly Bill 122 (1875) stated:

Section1. An attorney appointed by a Court to defend a person indicted for any offense, is entitled to receive

Thomas Wren. Nevada Historical Society. from the County treasury the following

14 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 36/124 03/22/2013 fees: For a case of murder, such fee Perhaps it was Wren’s own impoverished as the Court may fix, not to exceed upbringing or the fact that an unethical lawyer fifty dollars; for felony, such fee as swindled him out of what little money his par- the Court may fix, not to exceed fifty ents left him that made him want to ensure poor dollars; for misdemeanor, such fee as people were treated fairly in the justice systems the Court may fix, not to exceed fifty of Nevada. We cannot be sure, but a passage dollars. Such compensation shall be in a local journal published in 1880 hints that all paid by the County Treasurer out of of Wren’s works were toward the goal of secur- any moneys in the Treasury, not oth- ing the rights of poor people: “[Wren’s] purse erwise appropriated, upon the cer- tification of the Judge of the Court, that such attorney has performed the services required.

Section2. An attorney cannot, in such case, be compelled to follow a case to another county or into the Supreme Court, and if he does so, may recover an enlarged compensation, to be graduated on a scale corresponding to the prices allowed.

Section 3. This Act shall take effect from and after its passage.59

According to the Nevada Monthly, Thom- as Wren was one of the most successful and able lawyers in the state. “His honor is untarnished, and throughout the state his word is as good as his bond.”60 Under Wren’s leadership, the bill passed the Assembly on a vote of 34 to 3 with 14 abstentions.61 It passed the Senate on a similarly wide margin.62

Did Wren’s time as a prosecutor make him understand the importance of a strong defense in an adversarial en- vironment in order to reach the truth? Thomas Wren’s Assembly Bill 122 (1875). Courtesy of the Nevada State Library and Archives.

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future 15 IDC 37/124 03/22/2013 and services have always been at the command “no appeal was taken in said cause for the rea- of honest poverty and distress, and hundreds son that he was entirely ignorant of his rights as of struggling and unfortunate men in this State to appeal and the manner of taking an appeal, have been aided and their rights secured and that he had no counsel for his assistance or through his exertions.”63 guidance in taking an appeal.”65

As previously noted, the Nevada courts were In re Wixom still in their infancy and the Nevada Supreme Court was keenly aware that every decision it By the time Shepherd Wixom was able to make rendered established precedent for future cases. arrangements to sell what little property he When Nevada Attorney General John R. Kittrell owned and hire an attorney, the only legal action responded to Wixom’s petition, the focus of the available to him was to petition the Supreme case turned to the Nevada Supreme Court’s Court of Nevada for a writ of certiorari – a formal jurisdiction in writ of certiorari cases.66 Based request asking a higher court to review the on Nevada statutes and the Court’s own recent actions of a lower court in a specific proceeding opinions, if the lower court had jurisdiction over to determine if there were any irregularities. On the case and the person and did not exceed or April 2, 1877, Wixom’s private attorney T.W.W. depart from its jurisdictional authority, then the Davies64 filed a writ of certiorari with the Nevada Supreme Court was without power to disturb its Supreme Court. rulings on cert.67

The petition filed on behalf of There was no doubt that Wixom claimed that: a) the Judge McKenney had juris- trial court “compelled your diction over the case and petitioner to plead to said the person of the accused, indictment without the aid so the only remaining of counsel;” b) accommoda- question was whether the tions were not made to find trial judge exceeded or de- his material witnesses; and parted from his jurisdiction c) the trial court ignored his during Wixom’s 1874 trial. objection “to proceeding with In Nevada, it was certain- the trial of said cause with- ly customary for judges out the aid of counsel, as he to appoint counsel in just was totally unlearned in the about every criminal matter law and unable to conduct before them, but at the time his defense.” The petition of Wixom’s arrest and trial characterized Judge McKen- there was no statute that ney’s failure to grant Wixom required judges to appoint Petition for Certiorari in In re Wixom a fair day in court a “gross (1877). Courtesy of the Nevada State counsel. The Court ob- abuse” of power, stating that Library and Archives. served: “If there was any

16 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 38/124 03/22/2013 Capitol Building, Carson City (c. 1870). Special Collections, University of Nevada, Reno Library.

law which expressly required the district judges In a sad twist of legal irony, had Wixom been to assign counsel to the defendant in a criminal able to retain private counsel within the ap- action at any particular stage of the proceed- pellate filing deadline, it is likely his conviction ings, a failure to do so would be a departure would have been overturned and a new trial from the forms prescribed to them by law, and ordered. Through dicta in Wixom’s case, the would be ground of reversal on certiorari in Court took pains to say that, in forcing the cases where the remedy is available. But in defendant to go to trial without a lawyer, “the this state there is no such law.”68 And the Court district judge may have erred, and may have went on to declare: “In overruling the motion abused his discretion . . .. His action may have for a continuance, and compelling the petition- afforded good grounds for granting the defen- er to go to trial without professional counsel, dant a new trial, or for reversing the judgment the district judge . . . departed from no express on appeal . . ..”71 Wixom, however, had never provision of the law.”69 The Nevada Supreme filed an appeal. Court found that it lacked authority to overturn Wixom’s uncounseled conviction on certiorari, The Court did not stop there. Justice William and his petition was dismissed.70 H. Beatty,72 writing on behalf of the unanimous three-person bench, foreshadowed the view of the Nevada Supreme Court in cases to come.

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future 17 IDC 39/124 03/22/2013 Referring to Wren’s Assembly Bill 122, the representing the indigent accused, the Neva- Court concluded in In re Wixom that “a statute da Supreme Court was “of the opinion that it (Laws of 1875, 142) passed since the trial of was not the intention of the legislature to invest this petitioner, has made provision for compen- the courts with any such discretionary power.” sation of attorneys appointed to defend in such Instead, “[w]e are of the opinion that it was the cases. Probably since this statute, if not before, intention of the legislature to provide for the a failure to assign professional counsel for a payment of a fee, not exceeding fifty dollars, to poor defendant would be deemed a fatal error every attorney who defends a prisoner charged on appeal . . ..”73 It was too late for Wixom, but with crime, under appointment from the court.” Wren’s 1875 bill and the 1877 Nevada Supreme Court assured that, from that day forward, the The right to counsel in Nevada was formally failure to appoint counsel to the poor in a crimi- codified in 1909 when the Nevada legislature nal case was a valid reason to overturn convic- granted the justices of the Nevada Supreme tions on direct appeal. Court wide authority “to revise, compile, an- notate and index the laws of the State of Ne- vada.”76 For the most part, the Court adopted Furthering the Right to Counsel in the California Penal Code.77 Once revised, Nevada Section 10883 of the Nevada code stated: “If the defendant appears for arraignment with- To the extent that Wren’s bill could have been out counsel, he must be informed by the court construed as merely giving judges the dis- that it is his right to have counsel before being cretion to pay appointed counsel, but without arraigned and must be asked if he desires the requiring them to do so, the Nevada Supreme aid of counsel. If he desires and is unable to Court eliminated any ambiguity two years later employ counsel, the court must assign counsel in the 1879 case of Washoe County v. Hum- to defend him.”78 boldt County.74 The case involved, among other Most right to counsel scholars have things, the payment of marked this 1909 statute as the counsel in the controver- beginning of the right to appointed sial death penalty case counsel for the poor charged with of J.W. Rover.75 The crimes in Nevada, simply because Nevada Supreme Court, it was the first statute directly so citing Wren’s 1875 law, providing. But the law championed concluded that it was by Assemblyman Thomas Wren their duty “to determine and recognized by the Nevada the real intention of the Supreme Court in its ruling in the legislature.” Noting the case of Shepherd Wixom firmly financial hardship some established the right in 1877, more

attorneys endured when Justice William Henry Beatty (c. 1870). than thirty years earlier. Nevada Historical Society.

18 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 40/124 03/22/2013 Chapter 5 Would a Competent Attorney have helped Wixom?

t is, of course, impossible to go back in histo- We also know that the shortest robber was ap- ry and see what a competent attorney would parently “in-charge.” Ihave been able to accomplish for Mr. Wixom, but some evidence suggests that a well-quali- Four days later on October 1, 1873, another fied lawyer could have made a difference. Woodruff & Ennor’s stagecoach was robbed. The driver gave the same general description of three masked men carrying a rifle, a shotgun, Circumstantial Evidence and a revolver. “The Wells, Fargo & Company treasure box was demanded and this time it From the records of the Wells, Fargo & Com- was taken a short distance from the road before pany detective agency, we know much about being broken open. . . . This time the box the stagecoach robberies in Lander County in was empty so it was expected that the robbers 1873.79 On September 27, 1873, a Woodruff would strike again soon.”82 & Ennor’s stagecoach was traveling through a canyon near Vick’s Station when a masked The highwaymen waited four weeks before highwayman aimed his rifle at the stagecoach trying again. This time only two robbers were driver Eugene Burnett and ordered him to “halt.” involved. On October 22, 1874, at about the Two other bandits also appeared, one carrying “same point near the Reese River on the Battle a shotgun and the other holding a revolver. Mountain stagecoach route,”83 two highwaymen Each of the highwaymen obscured his face. ordered driver Bill Monk to halt. Accompanying Unlike the stereotypical bandana worn in Holly- Monk was an armed guard named Lou Ferot. wood westerns, the would-be robbers’ “heads The appearance of the highwaymen scared were covered with masks made from barley the team of horses and the driver could not get sacks with eye holes cut out.”80 The gang broke the horses under control immediately. Amidst open the treasure box with a hatchet and ab- all the excitement, the robbers “simply disap- sconded with about $200. peared into the brush”84 without further incident. It was the third attempted robbery and the sec- The coach was transporting two passengers.81 ond with nothing to show for it. Neither of the passengers nor the driver could identify the robbers and only gave vague de- Five days later on October 27, a lone road scriptions that the gang was composed of “one agent stopped another coach. He was carrying tall, one medium-sized and one short robber.” a shotgun. This may indicate that it was not

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future 19 IDC 41/124 03/22/2013 the “leader” – who generally carried a rifle – but Perhaps, not coincidently, it was less than a one of the other two road agents or, of course, week after the reward was offered that Wixom someone entirely different. In any event, the was arrested. Did someone want the reward robber stopped the coach, was handed the box, money and frame Wixom in a tip to Sheriff Em- and escaped. The driver was Eugene Burnett, ery? A good lawyer would have demanded to who was also driving when the stagecoach was cross-examine whoever the tipster was. robbed on September 27. Additionally, there were “six passengers aboard, one atop and five Wixom was only charged in three of the five inside, but they were not molested and there stagecoach robberies: the last three occurring was no request for the U.S. mails.”85 None on October 22, October 27, and November could identify the 1. Wixom was not road agent. “The Surely a competent charged in the amount taken original Septem- from Wells, lawyer would have had ber 27 robbery Fargo & Com- much to say about whether an committed by pany’s treasure experienced stagecoach driver three highway- box was not men and the disclosed but would stop to be robbed only one involv- it was thought by a man carrying nothing ing any signifi- to be a very cant amount of small amount so it but a stick. money. Eugene was expected that the Burnett was the driver road agent would strike again soon.”86 on both September 27 and October 27, and surely he would have been able to say if Wix- On November 1, 1873, yet another coach was om robbed him both times, so was it the case stopped. This time the lone robber built a barri- that Burnett knew Wixom was not involved in cade with sagebrush covered by a blanket – an the September 27 robbery? After all, the three entirely different modus operandi from the other culprits from the September 27 and October 1 attempts. “Mike Kehoe was driving with ‘Major’ robberies were the most likely suspects for all Stonehill and Road Superintendent W. Adding- five of the stagecoach robberies. ton riding on top.”87 All three men reported the “the robber has a decided ‘Yankee accent,’” And what of the three robberies for which Wix- something that was not reported by any of the om was arrested? Wells, Fargo & Company witnesses in any of the other recent robberies. fired the two stagecoach employees, Bill Monk “There was nothing of value among the con- and Lou Ferot who were working during the tents of the box” and “everything was still in the October 22 robbery, for allegedly abetting other box when recovered, though it had been thor- stagecoach robberies.90 Maybe it was Monk or oughly rifled through.”88 It was at that point that Ferot who pointed the finger at Wixom to hide “Wells, Fargo & Company offered a reward of their own treachery. Had a defense lawyer $500 for the capture of the road agents.”89 been present in the Lander County District

20 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 42/124 03/22/2013 Court, perhaps both Monk and Ferot would and was raised in Lexington, Michigan – not have been subpoenaed and questioned.91 The necessarily an area known for its “Yankee” potential of an inside job was mentioned in accents. the Territorial Enterprise, as during one of the stagecoach robberies for which Wixom stood But the richest trove of all for a defense attor- accused the road agent did not even carry a ney, had Wixom had one to represent him, was gun, but used a stick as if it were a rifle.92 Sure- probably the evidence about the allegedly sto- ly a competent lawyer would have had much to len coat. The Sacramento Daily Union article say about whether an experienced stagecoach on Wixom’s arrest notes that there were other driver would stop to be robbed by a man carry- “suspicious circumstances,” but the principle ing a stick. charge was simply that Wixom had the coat.93

During the October 27 robbery, one passenger Wixom had married Gusta Frazier in Utah a was riding on top of the stagecoach and surely short time before his arrest and trial. According got a good look at the lone robber. Though no to the press of the day, Wixom told “conflicting one was able to identify the road agent that day, stories” regarding the coat, “first saying he had a defense lawyer would have wanted to ques- bought it in Salt Lake City for his wedding and tion that passenger. After all, the passenger then said that it had been given to him as a might have testified that Wixom did not resem- gift.”94 One possibility is that Wixom did indeed ble the man who robbed the stagecoach on purchase or receive the coat for his wedding, as October 27. he said.95 Interestingly, the Territorial Enterprise of January 17, 1874 reported the following: “It is An attorney would also likely have taken mea- too bad that a great, rich and powerful corpora- sures to have the jury hear the testimony of eye-witnesses Ke- hoe, Stonehill and Addington from the heist on November 1, stating that the highwayman had a decidedly “Yankee accent.” From the 1860 United States census, we know that Shepherd L. Wixom was born in 1843 in Canada Carson Street, Carson City (c. 1865). Special Collections, University of Nevada, Reno Library.

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future 21 IDC 43/124 03/22/2013 tion like Wells, Fargo & Co. should descend so on felony charges of horse stealing. While wait- low as to put up a job on an innocent individual ing for his trial, he befriended another detainee, to rob him of his wedding coat.”96 Certainly the Ms. Hattie Funk.98 Funk was charged with local reporter got the impression that the coat in the murder of her husband, James, in Eureka. question was Wixom’s. The jury might well have Wixom was fully acquitted of the horse stealing reached the same conclusion if guided to it by a charge and was released from jail. defense attorney. Later, Wixom went back to visit Mrs. Funk at the Could it be that Wixom was given the coat by Lander County jail. He took her a package of one of the three real bandits or had happened men’s clothing, and Funk proceeded to walk out across the coat, but after learning that it was of the jail’s front door. Wixom was soon discov- stolen just did not know how to explain that to ered and arrested, even as Funk fled, but she the jury for fear that it would make him look quickly turned herself in. Though Wixom was guilty of the robberies? Again, we do not know, convicted of abetting Hattie’s escape from jail, but these were all avenues rich with potential he received a full pardon from the Governor of defenses in the hands of an attorney. Nevada after serving less than eight months in prison.99 Perhaps Wixom’s witnesses could have corrob- orated how he came into ownership of the coat Hattie Funk too was eventually acquitted of all or could have given him an alibi for the time of the charges she faced. It is purely speculative one or all of the three robberies. We simply do as to why she was acquitted of murder, but a not know because Wixom did not have a lawyer newspaper account at the time suggested that challenging his indictment or questioning wit- the death of James Funk was the result of a nesses or arguing his defense. domestic dispute involving “whiskey” and allega- tions of “domestic infelicities.”100

Wixom’s Criminal Record A lawyer might well have been able to prevent people from serving on Wixom’s jury who had Past behavior is often considered to be a good been influenced by tales of his alleged crimi- indicator of future actions. It is easier to believe nality carried in the newspapers. Even if the that someone who has committed crimes in jurors had read or knew of the accounts in the the past is likely to commit them in the future. press, the lawyer could have reminded the jury Wixom was branded in the press as a “notori- that Wixom was not guilty of the horse-stealing ous highwayman”97 and an ex-felon. His prior charge and thus had no prior conviction other criminal record seemed to make him guilty in the than aiding Funk’s escape. And, Hattie Funk eyes of public opinion. may have merely been defending herself against her husband James in what we would today Here is what is known of Wixom’s criminal consider to be a case of domestic violence. If record. In 1871, Wixom was arrested and jailed so, a good lawyer may have been able to por-

22 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 44/124 03/22/2013 Gravestone of Sheppard Wixon in Tuttle Gulch Cemetery. Courtesy of April Salinas, Redding, California.

tray Shepherd Wixom as an honorable man the escapees, Chris Blair, was living in Ogden, willing to stand up for a down-trodden innocent Utah, under the alias Charles H. Clark. Wixom woman who should never have been arrested told Sheriff Emery where Blair could be found. in the first place. In any event, a lawyer would Blair was captured and returned to Nevada most certainly have told the jury that the Neva- State Prison.102 In the hands of a competent da Governor had seen fit to fully pardon Wixom lawyer, such actions could be used either to for the crime of abetting Hattie’s escape from demonstrate that Wixom was of good character jail. or, perhaps, to show motive why a true outlaw like Blair may have wanted to set up Wixom as the fall guy for the stagecoach robberies.103 A Differing Theory of the Case

While Wixom was in the Nevada State Prison Character before the Governor pardoned and released him from abetting the Funk escape, 29 other Although the Supreme Court decision in In re prisoners staged a large-scale escape attempt Wixom strengthened Wren’s bill and protected on September 17, 1871. The prisoners overtook the rights of indigent defendants from 1875 the guards, broke into the armory, and stole onward, it did nothing for Shepherd Wixom per- weapons. After an “epic gun battle,” twenty pris- sonally. Wixom’s only available course of ac- oners made it free.101 tion was to petition the Board of Pardons for his release. In numerous pardon requests Wixom Some time later after Wixom was released from insisted on his innocence, reminded the Board prison and before his arrest on the stagecoach that he was denied counsel, that the Nevada robberies, Wixom became aware that one of Supreme Court had enforced the right to coun-

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future 23 IDC 45/124 03/22/2013 sel on behalf of future defendants in his name, veteran. He enlisted in Detroit on February and that he should be released.104 Though 5, 1863, at the age of 20 and was a private in it is lost to the historical record, Wixom even Company H of the Michigan 9th Cavalry Reg- claimed he had received a letter from Judge iment.108 Wixom’s regiment fought numerous McKenney admitting that the judge forced him battles with the Confederate Army as they to trial without a lawyer and that it had been wound their way through Ohio, Kentucky, and an “injustice” to do so.105 Judge McKenney did on into Tennessee and Georgia. There, Wix- ultimately recommend Wixom for a pardon, but om’s regiment was one of the few that stayed it did no good. Wixom never received a pardon with General Sherman on his famous march to from the Board. Instead, he was released from the sea that many historians credit with break- the Nevada State Prison in 1882 after serving ing the backbone of the Confederacy. out his sentence and left the state for good. He settled in Shasta County, California, where he Two months before Robert E. Lee would sur- died in 1894 at the age of 51.106 render in April of 1865, Shepherd L. Wixom was wounded in one of the final battles of the Civil Wixom is buried at the Tuttle Gulch cemetery.107 War. Rather than abandon the cause, Wixom Thanks to the electronic information age in transferred into the 17th Regiment Veteran’s which we now live, a photograph of Wixom’s Reserve Corps, also known as the “invalid” headstone is publicly available. The headstone corps. Despite their injuries, the men of the indicates that Wixom was a Union Civil War Reserve Corps aided the front lines with com- munication and supplies to the extent possible. Wixom remained in the Reserve Corps until November 1865.

With a competent attorney, Wixom’s military career could have been used during his trial to show his good moral character and to counter the public percep- tion that he was a “notorious highwayman.” This might have gone a long way with Wixom’s jury, given Neva- da’s reputation as the “battle born” state that achieved statehood, in part, to help Lincoln win the war effort. The 9th Michigan Cavalry at Lookout Mountain in Chattanooga, Tennessee (July 1864). Courtesy of Richard Bishop, Michigan.

24 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 46/124 03/22/2013 Chapter 6 The Current Indigent Defense Crisis in Rural Nevada

evada’s commitment to equal justice fender Commission of 1971 would meet virtually that began in the 1870s reached its every national standard related to the indepen- Nzenith in 1971. The U.S. Supreme dence of the defense function. Court handed down its Gideon v. Wainwright decision in 1963, mandating that states – not counties or local governments – must assure The Preeminent Need for Indepen- competent counsel to poor people accused dence of the Defense Function of felonies in state courts. In the wake of that decision, in 1970 the National Conference of In 1981, the United States Supreme Court de- Commissioners on Uniform State Laws, funded termined in Polk County v. Dodson that states by the U.S. Department of Justice, published a have a “constitutional obligation to respect the Model Public Defender Act that it recommended professional independence of the public de- all state governments adopt. Following that rec- fenders whom it engages.”110 Observing that ommendation, in 1971 the Nevada Legislature “a defense lawyer best serves the public not by created the State Public Defender as an execu- acting on the State’s behalf or in concert with tive branch agency charged with administering it, but rather by advancing the undivided inter- the constitutional mandate to provide competent ests of the client,” the Court concluded in Polk lawyers to the poor in all counties other than County that a “public defender is not amenable Clark (Las Vegas) and Washoe (Reno). to administrative direction in the same sense as other state employees.”111 The State Public Defender Act created an independent seven-member commission ap- Independence of the defense function is es- pointed by a diversity of factions109 to ensure pecially necessary to prevent undue judicial that no single branch of government could exert interference.112 As far back as the Scottsboro undue interference on the work of the agency Boys case (Powell v. Alabama113), the U.S. dedicated to representing poor people. The Supreme Court questioned the efficacy of commission was charged with overseeing the judicial oversight and supervision of right to State Public Defender system, hiring and firing counsel services, asking: “[H]ow can a judge, the executive of the system, and setting uniform whose functions are purely judicial, effectively policies for the delivery of indigent defense discharge the obligations of counsel for the ac- services. If created today, the State Public De- cused? He can and should see to it that, in the

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future 25 IDC 47/124 03/22/2013 proceedings before the court, the accused shall dence from undue political pressures and is an be dealt with justly and fairly. He cannot inves- important means of furthering the independence tigate the facts, advise and direct the defense, of public defense.”118 Likewise, the public or participate in those necessary conferences defense function should also “be independent between counsel and accused which some- from political influence.”119 To “safeguard in- times partake of the inviolable character of the dependence and to promote the efficiency and confessional.”114 quality of services, a nonpartisan board should oversee defender, assigned counsel, or contract National standards of justice reflect the aims systems.”120 of the U.S. Supreme Court. In February 2002, the American Bar Association (ABA), House of Footnotes to ABA Principle 1 refer to the Na- Delegates adopted the Ten Principles of a Pub- tional Study Commission on Defense Services’ lic Defense Delivery (NSC) Guidelines for System, noting that Each state has a Legal Defense the Principles ‘‘constitutional obligation to Systems in the “constitute the United States fundamental respect the professional (1976). The criteria neces- independence of the public Guidelines were sary to design defenders whom it engages.‘‘ created in con- a system that sultation with provides effective, the United States efficient, high quality, Department of Justice ethical, conflict-free legal representation for (DOJ) under a DOJ Law Enforcement Assis- criminal defendants who are unable to afford an tance Administration (LEAA) grant. NSC Guide- attorney.”115 In 2012, the U.S. Attorney General line 2.10 (The Defender Commission) states stated that the ABA “literally set the standard”116 that a “special Defender Commission should for indigent defense systems with the promulga- be established for every defender system, tion of the Ten Principles. whether public or private,” and that the primary consideration of appointing authorities should The first of the ABA Ten Principles explicitly be “ensuring the independence of the Defender states that the “public defense function, includ- Director.”121 ing the selection, funding, and payment of the defense counsel, is independent.”117 In the Independence of the defense function is the first commentary to this standard, the ABA explains of the ABA Principles because without it most that the public defense function “should be of the other ABA Principles are unobtainable. independent from political influence and subject Fearing a loss of their jobs if they do not please to judicial supervision only in the same manner either a judge or a county/state executive, and to the same extent as retained counsel,” defenders are at risk of taking on more cases noting specifically that “[r]emoving oversight than they can ethically handle (in violation of from the judiciary ensures judicial indepen- Principle 5), inappropriately delaying work on

26 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 48/124 03/22/2013 a case (in violation of Principle 3), not meeting Not surprisingly, the Nevada State Public De- the requirements of ethical representation as fender resigned in 1979, stating that the undue a result of triaging services (Principle 10), and political interference, institutionalized by the agreeing to work under low-bid, flat-fee con- Nevada Legislature in 1975, made it impossible tracts (Principle 8). to fulfill the agency’s mission. A subsequent independent review marked the State Public Defender system as “disorganized and under- About face: Nevada’s turn away funded.”123 from its commitment to equal justice In 1989, the legislature further compromised the ability of the State Public Defender to render In 1975, only four years after creating the State effective services by demoting the position from Public Defender Commission, the Nevada a gubernatorial cabinet-level position to one of Legislature did away with it and voted instead several intra-agency positions within the De- to make the State Public Defender a direct partment of Human Services. This move result- appointment by the Governor.122 Chief public ed in the State Public Defender having to argue defenders who are direct political appointees for adequate budgetary resources amongst often take into account what they must do to several other Human Service agencies. From please the Governor, rather than doing what is there, the director of Human Services would solely in the best interest of the defendants as have to argue for all of their needs against the ethics require, or they risk losing their jobs. needs of all the other executive branch departments. Say, for example, that a Governor calls for all executive branch departments to take a 10% Without an independent voice to advocate for cut in their budgets. The problem is that pub- appropriate resources, the state’s commitment lic defenders are constitutionally required to to the rural counties deteriorated further. As defend all people appointed to them from the originally conceived, the state paid for 80% of court. Unlike other aspects of government, the all public defender costs in the rural counties defense practitioners do not control their own and the counties funded the other 20%. The workload. Therefore a 10% budget cut is im- state’s financial commitment slowly eroded to possible to implement if it is not met by a 10% the point where counties, at first, had to pay the cut in workload –- at least it is impossible if one majority of the costs and, eventually, 80% of the is concerned about providing ethical represen- entire cost. Counties quickly learned that, by tation. But, despite the ethical considerations, simply opting out of the state system, they could the public defender that is a direct gubernatorial spend less money to provide the services and appointee is likely to cut 10% rather than risk exercise local power over their public defense being replaced by someone who will do what systems. the Governor says. Unfortunately for those too poor to hire their own counsel, this movement out of the State

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future 27 IDC 49/124 03/22/2013 Public Defender system was done with no and $46,661 on conflict counsel, with an addi- guidance whatsoever by the state. There were tional $23,036 spent on case-related services. no standards as to how the counties must set Though that may sound like a lot of money, up their systems. There were no standards to the county reported that in the same year they say what training or experience attorneys must had 202 felony cases including one murder have to take indigent case, 3,249 misde- defense cases or meanors, and what on-going There were no standards 341 juvenile training was guiding Nevada’s county delinquency required for governments as to how they cases.124 So, them to con- on average, tinue to take must set up their systems. there was only cases. In most $119.56 available instances, the county on each of these governments established systems in which the cases to pay the attorney a fee, and to pay the lowest bidder was contracted to provide repre- attorney’s overhead, and to pay for all of the sentation in an unlimited number of cases for necessary out-of-pocket expenses in the case. a single flat fee. The attorneys were not reim- One hundred and forty years ago the Nevada bursed for overhead or for out-of-pocket case Legislature first set attorney compensation at expenses such as mileage, experts, investiga- a rate not to exceed $50 dollars per case. The tors, etc. The more work an attorney did on a relative historical value of $50 in 1874 is esti- case, the less money that attorney would make, mated to be about $12,200 in 2007 dollars,125 giving attorneys a clear financial incentive to do yet Douglas County public defenders in 2007 as little work on their cases as possible. earned less than 1% of that.

The impact of this devolution was keenly felt ABA Principle 5 states that national “caseload during a survey undertaken by the Nevada standards should in no event be exceeded.”126 Supreme Court Indigent Defense Commission National caseload standards were first devel- in 2008. Since no state agency was responsi- oped in 1973 under a grant from the United ble for the representation given to poor defen- States Department of Justice.127 They state dants in rural Nevada, the commission had to that no attorney should handle more than 150 ask each county to self-report information such felonies in a single year if that is the only type as indigent defense expenditures and number of case handled. Similarly, an attorney handling of cases. Some counties could not or would only misdemeanors should have no more than not provide this basic information to Nevada’s 400 per year; juvenile delinquency matters no highest Court. more than 200 per year; and, appellate matters no more than 25 per year. Douglas County self-reported that it spent $383,683 in 2007 on primary defender services Using these national standards, Douglas (or, $191,845 each for two separate attorneys) County should have had over eleven full-time

28 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 50/124 03/22/2013 attorneys when, in fact, they operated with just contract defender there was appointed to the three part-time attorneys. And, the situation is bench, his pending cases needed to be trans- actually far worse. National standards require ferred to another attorney. A 27-year-old attor- indigent defense practitioners to have adequate ney who had only passed the bar exam a few support staff. For example, national standards weeks prior inherited the $105,000 contract. require indigent defense systems to have one He also began day one of his tenure as a public investigator for every three attorneys. A state defense attorney with 600 cases, 200 of which like Indiana lowers the maximum number of were felonies and some of those were murder cases a public defense attorney is allowed to cases. So a brand new part-time attorney with handle in a year if the attorney is not provided no experience or training was expected to jump with the required number of support staff. No into a caseload that under national standards such support staff was reported in Douglas should have been handled by more than three County. experienced full-time attorneys.

Additionally, the part-time conflict attorney And, all case-related expenses had to be paid handled only those cases where the other two out of that same flat fee. The Review Journal attorneys had conflicts (and, again, Douglas article reports that one public defense attorney County was unable to provide a simple count of in Lyon County must “travel 400 to 600 miles a the cases that went to this part-time conflict at- week to courthouses in Fernley and Yerington, torney). We know the conflict attorney was paid travel time that cuts into the time he can spend only ¼ of the amount paid to each of the other with clients.”129 With gasoline prices in 2007 at two attorneys, so from that we can reasonably approximately $3.10 a gallon, the attorney was estimate that the conflict attorney received 1 spending at least $4,000 out of that $105,000 case for every 4 cases that each of the primary flat fee just for gas.130 Factor in overhead costs attorneys received, or 1 of every 9 cases. This (e.g., insurance, bar fees, training, Internet, of- would mean that each of the part-time primary fice space, etc.) and anything needed to proper- attorneys handled an average mixed caseload ly defend the accused (e.g., experts, investiga- of 1,685 cases (or the equivalent of the case- tion, etc.), and it becomes obvious that, under load of nearly five full-time attorneys that would flat fee contracts, public defense attorneys have be allowed under national standards). And, financial interests to dedicate as little funding to this does not include other work the attorneys case-related expenses as possible. were required to do under their contracts, such as family court work and parole and probation For these reasons, ABA Principle 8 specifically violations. bans flat fee contracts: “Contracts with private attorneys for public defense services should Douglas County is not alone. The Las Vegas never be let primarily on the basis of cost; they Review Journal investigated the indigent de- should specify performance requirements and fense system in Lyon County, and they found the anticipated workload, provide an overflow even more problematic conditions.128 When a or funding mechanism for excess, unusual, or

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future 29 IDC 51/124 03/22/2013 complex cases, and separately fund, expert, investi- indigent defense system based on but a small fraction gative and other litigation support functions.”131 of the few cases that do go to trial and are appealed.

In certain circumstances (e.g., if all the facts nec- Sorting it all out on appeal essary for an IAC finding are contained in the trial record), an IAC claim can be brought on direct appeal. When a defendant is convicted and sentenced in a But, in rural Nevada, the same attorney who repre- trial court, he has the right to have the decision re- sented the defendant at trial is also responsible for viewed by a higher authority. During this review pro- handling the direct appeal. What are the chances that cess, the defendant overworked, unpre- can claim that What are the chances that pared, financially his trial lawyer conflicted, performed so overworked, unprepared, public defense poorly that it financially conflicted, public defense attorneys will negatively and attorneys will ever raise ineffective ever raise unfairly affected ineffective the outcome of assistance of counsel claims against assistance of the case. These themselves in a direct appeal? counsel claims claims are called against themselves “ineffective assistance in a direct appeal? In of counsel claims” (IAC claims), and if found meri- 1874, Shepherd L. Wixom may have had no appel- torious the case will be sent back to the trial courts late review because of a lack of counsel, but poor to be re-tried. Throughout the work of the Supreme defendants in rural Nevada today continue to have no Court Indigent Defense Commission, the Court heard meaningful review because the system is structured that there is no problem in the rural counties because so as to, in effect, give them no direct appeal.133 there have been few successful ineffective assistance of counsel claims. The first real chance of raising ineffective assistance of counsel claims occurs at the post-conviction However, upwards of 90% of all criminal cases in the stage of a criminal proceeding, where a defendant nation are resolved through plea bargains, not trials.132 may raise new issues about the constitutionality Douglas County, for example, self-reported that of the of his conviction beyond what is in the trial record. 3,793 indigent defense cases assigned in 2007, only But, of course, there is no federal right to counsel in four (4) cases went to trial. This is a trial rate of less post-conviction proceedings, and Nevada only ap- than one half of one percent (0.11%). More astonish- points counsel in post-conviction death penalty cases. ing still, none of the 3,249 misdemeanor cases were So, if there is no counsel, there is no investigation, ever brought to trial. And, Nevada limits the issues and there is no ability to develop the factual basis for that can be raised on direct appeal from a guilty plea. an IAC claim. Finally, only a tiny fraction of the cases that do go to trial ever move on to the appellate system. Therefore, Further, to the extent that ineffective assistance of it is simply unsound to gauge the health of an entire counsel claims are raised on either direct appeal or

30 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 52/124 03/22/2013 post-conviction in cases arising out of rural Ne- could have performed as an effective adversary vada courts, they are then typically subjected to was so remote as to have made the trial inher- an inappropriate standard of review. Strickland ently unfair.”138 v. Washington134 established a two-pronged test for ineffective assistance of counsel, requir- The Cronic Court gave criminal justice stake- ing that a defendant prove his trial attorney’s holders an example of systemic deficiencies actions were outside of the bounds of generally that prevent a meaningful adversarial process accepted norms of practice and that the failure – the case of the so-called Scottsboro Boys of the attorney was prejudicial in the outcome of in Powell v. Alabama. Reviewing Cronic and the case. This is most often the test applied by Powell together, it is clear that the U.S. Su- reviewing courts. preme Court has defined a meaningful adversarial process as one in which the system has On the very same day, the U.S. Supreme Court both appointed an attorney and also given that handed down United States v. Cronic as a attorney the time and resources to do an effec- companion case to Strickland.135 Cronic con- tive job. Reflecting on the lack of advocacy giv- cluded that the right to the effective assistance en the Scottsboro Boys, the Powell Court said: of counsel is “the right of the accused to require “from the time of their arraignment until the the prosecution’s case beginning of their trial, to survive the cru- when consultation, cible of mean- thoroughgoing ingful adver- The right to the effective investigation sarial testing.” assistance of counsel is ‘‘the and prepa- Referencing right of the accused to require ration were Strickland, vitally import- the Cronic the prosecution’s case to survive ant, the de- Court noted the crucible of meaningful fendants did that when “a adversarial testing.‘‘ not have the true adver- aid of counsel sarial criminal in any real sense.” trial has been con- Moreover, “[i]t is vain ducted -- even if defense counsel may have to give the accused a day in court with no op- made demonstrable errors -- the kind of testing portunity to prepare for it, or to guarantee him envisioned by the Sixth Amendment has oc- counsel without giving the latter any opportunity curred.”136 However, the Court continued, “if the to acquaint himself with the facts or law of the process loses its character as a confrontation case.” between adversaries, the constitutional guarantee is violated.”137 So, if there is a complete Thus, if a defendant is not given an attorney breakdown in the adversarial system, then it is with the time to conduct a thorough investiga- entirely appropriate to “[conclude] that, under tion, the system is inherently defective. This is these circumstances, the likelihood that counsel true whether the lack of time is caused by being

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future 31 IDC 53/124 03/22/2013 formally appointed too late in a case or by an penitentiary for ten long years at tax payer excessive caseload that precludes the attorney expense? Or, did Wixom receive his just pun- from spending the appropriate amount of time ishment? The simple answer is that no one on a case. When an attorney agrees to han- will ever know for certain because Wixom did dle 1,400 cases in a year, or has 600 cases on not get to subject his indictment to meaningful his very first day with no prior experience, or is adversarial testing. willing to sacrifice zealous advocacy to please a judge or executive, the defense system is no The fact that the criminal courts in rural Ne- longer capable of subjecting each prosecution vada today do not, in every instance, provide to “the crucible of meaningful adversarial test- an adequate right to counsel, means that the ing.” The system is inherently deficient. same mistakes are still being made that threat- en public safety. The state of Nevada must make every effort to restore a meaningful right Conclusion to counsel to ensure that its criminal courts are doing the very best to convict the guilty while Was Shepherd L. Wixom guilty of robbing preventing the wrongful conviction of the inno- stagecoaches in Lander County in 1873? Did cent. the real perpetrator of the crime remain at large to wreak havoc on public safety in Nevada while an innocent man languished at the state

Austin, Nevada (c. 1870). Special Collections, University of Nevada, Reno Library.

32 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 54/124 03/22/2013 Chapter 7 Recommendations

ince January 2008, the Nevada Su- and approval of trial-related expenses must be preme Court has handed down a carried out by another judge within the district Snumber of administrative orders aimed or by the district judge who has served longest at providing a constitutionally adequate right to in the district. This temporary fix has become counsel. Though the orders have had signifi- institutionalized over the past four years and, cant impact on urban Nevada, and in particular of course, it never remedied that problem of Clark County (Las Vegas), the administrative judicial interference exerting undue influence on orders have had little impact in rural counties. an appointed lawyer. In other words, this fix is The reason for this is not very complicated. As no solution at all. the largest county in the state, Clark County has the resources and indigent defense structure to We begin our recommendations with a simple respond to the Court’s mandates, whereas rural observation: Nevada’s rural counties cannot Nevada does not. shoulder the state’s financial responsibilities under Gideon and its progeny. An examination So, for example, when the Court ordered the of U.S. Supreme Court case law on the right to judiciary to be removed from the oversight and counsel since 1963 reveals that county respon- administration of indigent defense services in sibilities for funding indigent defense in Nevada January 2008, Clark County could easily hire are only going to expand in future years unless an independent assigned counsel coordinator the state steps in. Because the right to coun- to run the conflict panel. But the rural counties sel is a core foundation of individual liberty, the had no financial ability to hire independent con- United States Supreme Court has time after tractors to administer their services. In many time expanded the right to counsel whenever a rural counties, two or three attorneys provide all question has arisen regarding how, when, and right to counsel services, and hiring a fourth to where counsel must be provided to an individu- supervise is cost-prohibitive. For this reason, al facing a loss of liberty at the hands of govern- the Court accepted what became known as ment. This has been true regardless of whether the “Wagner Compromise,” a so-called tempo- the U.S. Supreme Court of the time was viewed rary fix for jurisdictions where there are three as liberal or conservative. The right to counsel or fewer district or limited court judges within established for felony cases in Gideon now a single township. In these jurisdictions un- applies as well to direct appeals,139 juvenile der the “Wagner Compromise,” appointments delinquency proceedings,140 misdemeanors,141

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future 33 IDC 55/124 03/22/2013 misdemeanors with suspended sentences,142 arraignment and arraignment on the indictment” and appeals of sentences resulting from guilty even though strongly urged to do so.152 pleas.143 The United States Supreme Court has also Although Gideon required the “guiding hand of consistently held that the right to a lawyer counsel at every step in the proceedings (em- means more than just the right to a warm body phasis added),” it took the Court a number of with a bar card. In McMann v. Richardson,153 cases to delineate the specific steps in a case the Court declared that “the right to counsel is at which the right to counsel must be provid- the right to the effective assistance of counsel.” ed. These steps now include at least police In 2010 in Padilla v. Kentucky, the Court said interrogations,144 post-indictment police line- “(i)t is our responsibility under the Constitution ups,145 preliminary hearings,146 and plea negoti- to ensure that no criminal defendant—whether ations.147 It was the Roberts Court in 2008 that a citizen or not—is left to the ‘mercies of incom- extended the right to counsel to its earliest point petent counsel.’ To satisfy this responsibility, yet. When a person is arrested on a criminal we now hold that counsel must inform her client charge, the accused is brought before a mag- whether his plea carries a risk of deportation.”154 istrate to be told of the accusation against him And in 2012, the Court made clear with two and learn whether and under what circumstanc- more cases – Missouri v. Frye and Lafler v. es he can be released from jail, if at all. This Cooper – that the right to effective assistance of appearance before a magistrate often occurs counsel applies not just to trials but also to the long before prosecution is formally instituted plea-bargaining process.155 The Frye and Coo- and often even before any prosecutor is aware per decisions greatly increase the exposure of that a crime has occurred or that a person has those governments that are responsible for pay- been arrested for it. In Rothgery v. Gillespie ing the cost of meritorious ineffective assistance County, the Roberts Court reaffirmed two earli- of counsel claims, because the overwhelming er decisions of the Court holding “that the right majority of cases are resolved through plea to counsel attaches at the initial appearance deals. Nevada’s rural counties just cannot keep before a judicial officer. This first time before a up with the cost of this ever-evolving right to court, also known as the ‘preliminary arraign- counsel case law. ment’ or ‘arraignment on the complaint,’”148 said the Court, “marks the start of adversary judicial Moreover, the U.S. Department of Justice has proceedings that trigger attachment of the Sixth begun to enforce the right to counsel. On Amendment right to counsel.”149 At that point, December 18, 2012, the U.S. Department of the state is obliged “to appoint counsel within Justice announced an agreement with Shelby a reasonable time once a request for assis- County (Memphis), Tennessee, to usher in ma- tance is made.”150 The Court made clear that jor reforms of the county’s juvenile court system it does not matter “whether the machinery of and the method for representing children in prosecution was turned on by the local police delinquency proceedings. Sweeping changes or the state attorney general,”151 and it refused are afoot, including systemic safeguards such to countenance any “distinction between initial as independence, reasonable caseloads, attor-

34 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 56/124 03/22/2013 ney performance standards, and training for the state system, although both receive some state juvenile defense function, among others – basi- funding. cally the majority of the standards envisioned by the ABA Ten Principles. Should the Department Though it is always best to have local stakehold- of Justice turn next to rural Nevada, it could ers determine the most appropriate make-up become very costly for the counties to try to of such commissions, we note how two states defend a federal lawsuit. have set up their Commissions:

For all these reasons, the 6AC makes a single a. Louisiana Public Defender Board: La recommendation: R.S. 15 § 146 creates a 15-member commission. Appointing authorities: Governor Recommendation #1: A state-funded (2 appointees); Chief Justice (2 appoin- public defender commission is established to tees: one a juvenile justice expert; one a oversee and administer all right to counsel retired judge with criminal law experience); services in every county other than those that President of the Senate (1); Speaker of the are required under Nevada Revised Statutes House (1); Four Deans of accredited law 260.010 to have a local public defender agen- schools (Louisiana State University, Loyola, cy. The commission is authorized to establish Southern, and Tulane – 1 appointment and administer rules and standards for the each); State Bar Association (2); Louis A effective and efficient delivery of indigent Martinet Society (African-American Bar: defense services in those counties that it over- 1); Louisiana State Law Institute’s Children sees. Code Committee (1); and, the Louisiana In- terchurch Conference. “Persons appointed The Nevada Supreme Court should either make to the board shall have significant experi- permanent the indigent defense commission ence in the defense of criminal proceed- envisioned in the January 4, 2008 ADKT-411, ings or shall have demonstrated a strong but exclude those counties required to have a commitment to quality representation in public defender under Nevada Revised Statutes indigent defense matters. No person shall 260.010 (Clark and Washoe Counties), or the be appointed to the board that has received Court should actively engage the legislature to compensation to be an elected judge, do so. Several states have similar systems. elected official, judicial officer, prosecutor, For example, the Oklahoma Indigent Defense law enforcement official, indigent defense Services oversees and administers services in provider, or employees of all such persons, rural counties, while Oklahoma County (Oklaho- within a two-year period prior to appoint- ma City) and Tulsa County (Tulsa) remain out- ment. No active part-time, full-time, con- side of the state system. In Kentucky, Jefferson tract or court-appointed indigent defense County (Louisville) remains independent of the provider, or active employees of such Kentucky Public Advocate. And in Tennessee, persons, may be appointed to serve on the both Davidson County (Nashville) and Shelby board as a voting member.” County (Memphis) operate independent of the

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future 35 IDC 57/124 03/22/2013 b. North Carolina Commission on Indigent cases on a hourly pay or contract basis. With a Defense Services: NC G.S. § 7A-498.4 coordinated rural system, a single state commis- creates a thirteen-member commission. sion can gauge the ability of private attorneys Appointing authorities are as follows: Chief to appropriately handle cases in more than one Justice (1 appointment); Governor (1); county, thus maximizing the efficient use of the Senate President (1); Speaker of the House relatively few attorneys in rural Nevada who are (1); North Carolina Public Defenders As- willing to do this work. Such a commission may sociation (1); State Bar (1); North Carolina even be able to contract with the Clark County Bar Association (1); NC Academy of trial Public Defender to provide training for the hourly lawyers (1); NC Association of Women or contract attorneys, so as not to reinvent the Lawyers (1); the Commission makes three wheel nor have duplicative services in a state more appointments. “Persons appointed where most of the cases arise from a single to the Commission shall have significant jurisdiction. experience in the defense of criminal … or shall have demonstrated a strong commit- The problem, of course, is what should be done ment to quality representation in indigent with the current State Public Defender office. defense matters. No active prosecutors or The 6AC recommends that the State Public law enforcement officials, or active employ- Defender office be brought under the auspices ees of such persons, may be appointed to of the new commission and turned into a rural or serve on the Commission. No active ju- appellate office. In this way, Nevada can ensure dicial officials, or active employees of such that every indigent client receives a new and in- persons, may be appointed to or serve on dependent attorney to handle the direct appeal. the Commission, except as provided in sub- This location can likewise serve as the central section (b) of this section. No active public administrative office for the entirety of the rural defenders, active employees of public trial and appellate system. A central staff can defenders, … may be appointed to or serve pay vouchers, administer contracts, handle attor- on the Commission.” ney-qualification certifications, provide supervision, be a state defender help desk, etc. In large geographic areas with relatively small populations, staffed public defender offices are often not the best method for delivering services. The new commission should therefore be authorized to administer, set standards for, and oversee a rural assigned counsel and/or contract attorney system, should the commission deem these to be the most suitable for a particular jurisdiction. This is precisely what Montana does, because the statewide commission determined that most of rural Montana only has enough cases to merit hiring private attorneys to handle the

36 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 58/124 03/22/2013 Endnotes

1. Hume, James B. and John N. Thacker. Wells, Fargo & Co. Stagecoach and Train Robberies, 1870- 1884: The Corporate Report of 1885 with Additional Facts about the Crimes and their Perpetrators. Revised Edition. Edited and expanded by R. Michael Wilson. McFarland & Company, Inc. Jefferson, North Caro- lina. 2010. Pages 234-237. This report relies for the most part on the Wells, Fargo & Company reports for the facts surrounding the arrest of Shepherd L. Wixom and the stagecoach robberies he is alleged to have committed. The 6AC notes original source materials – like newspapers of the day – whenever the narrative deviates from the Wells, Fargo & Company reports.

2. Shepherd L. Wixom is the official name on the Nevada Supreme Court petition for certiorari en- tered in 1877 and is the one used throughout this report. However, as is typical with reporting of the day, Mr. Wixom’s name is not spelled consistently throughout the historical record. The Wells, Fargo & Company records list him as “Shep Wixon.” His first name is spelled at times as “Sheppard” or “Shepard,” and his last name is spelled as “Wixon,” “Wixam,” and “Wixson.” The 6AC researched genealogical records trying to see if Shepherd Wixom was related to one of Austin’s leading families of the day. After all, in a mining town quite small by today’s standards, how many Wixom families could there be? William Wallace Wixom was the town doctor for Austin and the father of Nevada’s first worldwide celebrity, Emma Nevada – an opera singer who played for many of the crowned heads of Europe. However, we were not able to make that connection and now believe that Shepherd L. Wixom is “Sheppard Wixon” of Lexington, Michigan, who was born in 1843.

3. Territorial Enterprise. October 7, 1873.

4. See generally: Beito, David T. and Linda Royster Beito. Rival Road Builders: Private Toll Roads in Nevada, 1852-1880. Nevada Historical Society Quarterly. Volume 41, Number 2. Summer 1998. Available at: http://history.ua.edu/html/faculty/beitorivalroadbuilders.pdf.

5. The famous green Wells, Fargo & Company “treasure boxes” were made of “sturdy Ponderosa pine, oak and iron” and were “prized by highway bandits” because they often carried “gold dust, gold bars, gold coins, legal papers, checks and drafts.” Though they were difficult to break open, “the real security of the treasure boxes came from who was guarding them – the Wells Fargo shotgun messengers.” “If thieves were foolhardy enough to try and steal a treasure box in transit, they would find themselves staring down the barrel of a sawed-off shotgun, loaded with 00 buckshot, and possibly held by Wyatt Earp himself.” Information on Wells, Fargo & Company treasure boxes comes from the Wells Fargo website at: www.wellsfargo.com/about/ history/stagecoach/treasure_box.

6. A “road agent” was a common term used in the 1870s for a “highwayman,” “bandit,” or “robber.” The terms are used interchangeably throughout the report.

7. That Wixom requested to be brought to a committing magistrate, and the subsequent denial of that request, was not part of the record in the Wells, Fargo & Company records. This information is contained in Wixom’s petition for certiorari submitted to the Nevada Supreme Court on April 2, 1877 by his privately retained attorney, T.W.W. Davies of Carson City.

8. For all questions related to criminal procedure in Nevada at the time of Wixom’s trail, the 6AC used The Compiled Laws of Nevada in force from 1861 to 1900 (inclusive): with annotations from Volumes I to XXV of the Decisions of the Supreme Court of Nevada. The laws were compiled and annotated by Henry C. Cutting of the Nevada Bar. Printed by Andrew Maute, Superintendent of State Printing, 1900.

9. Ibid.

10. In preparation for submitting the writ of certiorari, Wixom’s lawyer T.W.W. Davies requested the official minutes of the Lander County District Court in the case of State of Nevada vs. Shepard L. Wixan. On February 19, 1877, the District Court responded to the request. It is included in the submission to the Court

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future 37 IDC 59/124 03/22/2013 and now resides in the Nevada State Archives.

11. Gideon v. Wainwright, 372 U.S. 335 (1963).

12. This section borrows language from the afterward drafted by 6AC Executive Director David Carroll for the forthcoming book Chasing Gideon: The Elusive Quest for Poor People’s Justice by Karen Houppert. To be published March 18, 2013 by New Press, New York, New York.

13. Henry, Patrick. Speech before the Virginia House of Burgesses at St. John’s Church. March 23, 1775: “Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! -- I know not what course others may take; but as for me, give me liberty or give me death!”

14. Jefferson, Thomas. A Letter from Thomas Jefferson to James Madison. December 20, 1787. The Thomas Jefferson Papers Series 1. General Correspondence. 1651-1827. Available at: http://memory.loc. gov/cgi-bin/ampage?collId=mtj1&fileName=mtj1page008.db&recNum=726.

15. Adams, John. The Works of John Adams, Second President of the United States: with a Life of the Author, Notes and Illustrations, by his grandson Charles Francis Adams (Boston: Little, Brown and Co., 1856). 10 volumes. Volume II: Diary, Notes of Debate, and Autobiography.

16. Randolph N. Jonakait, The Rise of the American Adversary System: America Before England (July 2009), as published in Widener Law Review. Available at: http://widenerlawreview.org/files/2009/06/01-jonakait-final-323-356.pdf. See also: http://broomerslaw12.weebly.com/uploads/6/2/8/1/6281119/the_adversarial_ and_inquisitorial_trial_system1.pdf; http://mercantilelaws.blogspot.com/2012/07/difference-between-adversarial-and.html; and http://www.lawcom.govt.nz/sites/default/files/adversarial_and_inquisitorial_systems_2.pdf.

17. II Rhode Island Colonial Records 1664-77 (Bartlett, 1857), p. 239. [As noted in William M. Beaney, The Right to Counsel in American Courts (U. of Mich. Press, 1955), at note 47, pp. 17-18.]

18. Randolph N. Jonakait, The Rise of the American Adversary System: America Before England (July 2009), as published in Widener Law Review. Available at: http://widenerlawreview.org/files/2009/06/01-jonakait-final-323-356.pdf.

19. Virginia was the lone state without the right to counsel in its constitution. See Beaney, pp. 14-26.

20. Dissent of Justice Louis Brandeis. New State Ice Co. v. Liebmann, 285 U.S. 262 (1932). Available at: http://supreme.justia.com/cases/federal/us/285/262/case.html.

21. Much of the history in this section takes its information from two sources: (1) Rocha, Guy Louis. Nevada’s Emergence in the American Great Basin: Territory and State. Nevada Historical Society Quarterly. Volume 38, Number 4. Winter 1995. Pages 255- 280; and (2) Heller, Dean, Secretary of State of Nevada. Political History of Nevada, 2006 (11th Edition). Edited by Renee Parker and Steve George. State Printing Office, Carson City, Nevada (2006).

22. Makley, Michael J. The Hanging of Lucky Bill. Eastern Sierra Press. Woodsfords, California. 1993. Page 17.

23. Ibid. Page 18.

24. Heller. Political History of Nevada, 2006 (11th Edition). Page 66-68.

25. Makley. The Hanging of Lucky Bill. Page 18.

26. Ibid. Page 18.

27. Orson Hyde was one of 12 apostles of the Mormon Church. Heller. Political History of Nevada, 2006 (11th Edition). Page 79.

28. Ibid. Page 87-88.

29. Makley. The Hanging of Lucky Bill. Page 47.

30. Ibid. Page 47.

38 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 60/124 03/22/2013 31. Ibid. Page 47.

32. Ibid. Page 55.

33. Ibid. Page 55.

34. Ibid. Page 22.

35. Ibid. Page 22.

36. The facts of Lucky Bill’s arrest and trial are compiled from Makley’s book, The Hanging of Lucky BilI, Pages 90-94.

37. Powell v. Alabama, 287 U.S. 45 (1932).

38. Makley. The Hanging of Lucky Bill. Page 55.

39. Ormsby died gearing up one last vigilante committee to attack a Paiute tribe that had killed five white men while rescuing two kidnapped Paiute children.

40. United States Census Bureau. See: http://www.census.gov/dmd/www/resapport/states/nevada.pdf.

41. Heller. Political History of Nevada. Page 102.

42. All information on the Constitutional Convention of 1863 is taken from the following: Marsh, Andrew J., and Samuel L. Clemens (Mark Twain). Reports of the 1863 Constitutional Convention of the Territory of Nevada. Edited by William C. Miller and Eleanore Bushnell. Published by Legislative Counsel Bureau, State of Nevada.

43. Ibid. Page 30-31.

44. Section 2 of the Constitution of the State of Nevada.

45. Dickerson, Harvey, Attorney General State of Nevada. Official Opinions of the Attorney General - 1964. Available at: http://ag.state.nv.us/publications/ago/archive/1964_AGO.pdf

46. California Penal Code of 1872, Section 987: “If the defendant appears for arraignment without counsel, he must be informed by the court that it is his right to have counsel before being arraigned and must be asked if he desires the aid of counsel. If he desires and is unable to employ counsel, the court must assign counsel to defend him.” Enacted February 14, 1872.

47. Nevada Supreme Court. In re Wixom. (Number 842 ½, April 1877). Pages 219-224.

48. Ibid.

49. Hume, James B. and John N. Thacker. Wells, Fargo & Co. Stagecoach and Train Robberies, 1870- 1884. Pages 234-237.

50. Minutes of the Lander County District Court in the case of State of Nevada vs. Shepard L. Wixan. February 19, 1877. Submitted in petition of Shepherd L. Wixom in In re Wixom. Available at the Nevada State Archives.

51. Hume, James B. and John N. Thacker. Wells, Fargo & Co. Stagecoach and Train Robberies, 1870- 1884. Pages 234-237.

52. Sacramento Daily Union. Volume 46, Number 7056. November 14, 1873.

53. Territorial Enterprise, January 17, 1874. Page 2.

54. Sacramento Daily Union. January 14, 1874.

55. The Compiled Laws of Nevada in force from 1861 to 1900 (inclusive): with annotations from Volumes I to XXV of the Decisions of the Supreme Court of Nevada. The laws were compiled and annotated by Henry C. Cutting of the Nevada Bar. Printed by Andrew Maute, Superintendent of State Printing, 1900.

56. All biographical information on Thomas Wren is from The Nevada Monthly. Volume 2, Number 1.

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future 39 IDC 61/124 03/22/2013 September 1880. Page 46-47.

57. Journal of the Assembly for the State of Nevada, 1875. Page 48.

58. Ibid.

59. Ibid. Wren’s original bill did not limit attorney compensation. The Nevada Senate amended Wren’s bill to add the $50 caps.

60. The Nevada Monthly: A Book of Reference and Information, Devoted to the Mining, Agriculture, and Industrial Interests of the State and Literature. Volume 2, Number 1. September 1880. Page 39. Available at the Huntington Library, Rare Books Department, in San Marino, California.

61. Journal of the Assembly for the State of Nevada, 1875.

62. Journal of the Senate for the State of Nevada, 1875.

63. Ibid.

64. Tamerlane William Whiting Davies was a graduate of the United States Naval Academy before be- coming a high-ranking military officer in the Army of the Confederate States of America. He moved to Carson City two years after the end of the Civil War and became a highly acclaimed lawyer. Biographical material on T.W.W. Davies available at: http://autaugaatwar.multiply.com/journal/item/186/Lt.-Col.-T.W.W.-Davieshttp://da- viesofpebbleton.org/bios/HamDavies.htm.

65. Petition of Shepherd L. Wixom for Writ of Certiorari. April 2, 1877.

66. Response of the Attorney General to Petition for Certiorari on Behalf of Shepherd L. Wixom. Avail- able at the Nevada State Archives.

67. Nevada Supreme Court. In re Wixom. (Number 842 ½, April 1877). Page 223.

68. Ibid. Page 224.

69. Ibid.

70. Ibid.

71. Ibid.

72. Justice William H. Beatty most assuredly knew of Wren and his work. Wren took over the office of the City Attorney in Austin upon Beatty being appointed to the District Court bench in White Pine.

73. Nevada Supreme Court. In re Wixom. (Number 842 ½, April 1877). Page 224.

74. Washoe County v. Humboldt County, 14 Nev. 123, 133 (1879).

75. J.W. Rover was tried for murder in Humboldt County, but twice had his convictions overturned on appeal by the Nevada Supreme Court. A change of venue to Washoe County was needed for the third (and fourth) trials because of a depleted jury pool. The question in Washoe County v. Humboldt County was which county had to pay for all the associated costs of the third trial. For an excellent history of the trials, see: Rocha, Guy, True Confessions: The J.W. Rover Case at http://nsla.nevadaculture.org/index.php?option=com_ content&task=view&id=805&Itemid=418.

76. Nevada Stats 1909, 330-33.

77. That Nevada turned to California for assistance in revising the Criminal Code is not surprising given the history of the two states. It is worth noting that Justice William H. Beatty, having ascended to be Chief Justice of Nevada Supreme Court, later stepped down and moved to Sacramento to be with his family. Beatty would go on to serve as Chief Justice for the State of California for 25 years.

78. Nevada Stats 1909, 330-33.

79. Hume, James B. and John N. Thacker. Wells, Fargo & Co. Stagecoach and Train Robberies, 1870- 1884: The Corporate Report of 1885 with Additional Facts about the Crimes and their Perpetrators. Revised

40 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 62/124 03/22/2013 Edition. Edited and expanded by R. Michael Wilson. McFarland & Company, Inc. Jefferson, North Carolina. 2010. Pages 234-237.

80. Ibid.

81. Ibid. The passengers were “Mrs. Soule of Virginia City and Charles Sutherland of Palisade.”

82. Ibid.

83. Ibid.

84. Ibid.

85. Ibid.

86. Ibid.

87. Ibid.

88. Ibid.

89. Ibid.

90. Earl, Phillip I. This was Nevada: Perils of the Stagecoach in Nevada Reviewed. Henderson Home News. March 28, 1991. Available at: http://digitalcollections.mypubliclibrary.com/digital/11/4100/1/24.pdf

91. Ibid.

92. Territorial Enterprise, January 17, 1874.

93. Ibid.

94. Sacramento Daily Union. Volume 46, Number 7056. November 14, 1873.

95. In Nevada’s earliest days, the vast majority of the population were male, as prospecting or mine working was a very tough life. Most expected to strike it rich and then return to their native state to settle down. Shepherd Wixom was different in that he was married at the time of his arrest. That does not, of course, prove anything other than he did not fit the stereotype of an outlaw.

96. Territorial Enterprise, January 17, 1874

97. Sacramento Daily Union. January 14, 1874.

98. The Wells, Fargo & Company report identifies the defendant as “Hattie Frank.” Newspaper accounts referenced later in the report confirm her name as “Hattie Funk.”

99. Records of Pardons Granted in 1871-72. These records are available at the Nevada State Archives. Wixom was committed to the Nevada State Prison on July 15, 1871. He was pardoned on February 2, 1872. See records of the Nevada Board of Pardons available at the Nevada State Archives.

100. Sacramento Daily Union. Volume 41, Number 7155. April 19, 1871.

101. This information is a synopsis of the escape described in http://www.historynevada.com/tw/1871+Ne- vada+State+Prison+Escape. For a fuller understanding of the prison escape, see: Delaney, Richard. Quest for Freedom: Historical Account of the Daring 1871 Nevada State Prison Escape. Talahi Media Arts. Prather, California. 2007. Available at: http://www.questforfreedom.net/Quest-for-Freedom.pdf.

102. Territorial Enterprise. January 21, 1874.

103. Indeed, maybe the thought of returning to prison with a history of being a snitch and knowing Blair was there was the real reason Wixom attempted suicide after his conviction.

104. Pardon applications of Shepherd L. Wixom available at the Nevada State Archives.

105. Ibid.

106. Shasta County genealogy and historical records. Available at: http://www.cagenweb.com/shasta/cem-

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future 41 IDC 63/124 03/22/2013 etery/tuttlcem.html

107. That the person buried in Tuttle Gulch is indeed Shepherd L. Wixom was confirmed through Shasta County voting records available through geneology.com. The voting records have Wixom arriving after his release from Nevada State Prison and record the same exact physical descriptions that are contained in the Wells Fargo crime records. That is, Wixom’s age, height, hair color, eye color, and complexion all match.

108. Wixom’s military records were recovered through geneology.com.

109. The State Public Defender Commission as originally created had three appointments by the governor, three by the State Bar of Nevada, and one by the Chief Justice (1).

110. Polk County v. Dodson, 454 U.S. 312 (1981). Available at: http://www.oyez.org/cases/1980-1989/1981/1981_80_824.

111. Ibid.

112. Much of this section is taken from a June 20, 2012 letter to the Nevada Supreme Court written by Sixth Amendment Center Executive Director David Carroll, in reference to the Washoe County early case resolution program.

113. Powell v. Alabama, 287 U.S. 45 (1932). Available at: http://www.oyez.org/cases/1901-1939/1932/1932_98.

114. Ibid.

115. American Bar Association. Ten Principles of a Public Defense Delivery System. February 2002. Available at: http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ ls_sclaid_def_tenprinciplesbooklet.authcheckdam.pdf.

116. Holder, Eric, United States Attorney General. Speech before the American Bar Association Nation- al Indigent Defense Summit. New Orleans, Louisiana. February 4, 2012. Speech available at: http://www. justice.gov/iso/opa/ag/speeches/2012/ag-speech-120204.html.

117. ABA. Ten Principles. February 2002.

118. Ibid.

119. Ibid.

120. Ibid.

121. The Guidelines are available at: https://www.ncjrs.gov/App/publications/Abstract.aspx?id=41494.

122. This section is a synopsis of the work of the Nevada Supreme Court Indigent Defense Commission, Rural Subcommittee. Its report and recommendations are available at: http://www.nevadajudiciary.us/index. php/indigentdefensecommission.

123. Ibid.

124. Ibid.

125. Historical currency conversion was done on the following website: http://www.measuringworth.com/ ppowerus/.

126. ABA. Ten Principles. February 2002.

127. Available at: http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Defense.

128. This section relies on the following article: Maimon, Alan. “Lyon County Attorney Handles Massive Indigent Defense Caseload”. Las Vegas Review Journal. August 25, 2007. Available at: http://www.lvrj.com/ news/9370346.html.

129. Ibid.

130. The calculation is based on the attorney driving an average of 500 miles a week in a car that gets

42 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 64/124 03/22/2013 20 miles to the gallon. That would be an average of 25 gallons of gas per week. At $3.10 per gallon, that is $77.5 per week. At 52 weeks per year, that is $4,030.

131. ABA. Ten Principles. 2002.

132. Ostrom, Brian J. and Roger A. Hanson. Efficiency, Timeliness, & Quality: A New Perspective from Nine State Criminal Trial Courts. U.S. Department of Justice, Office of Justice Programs, National Institute of Justice. June 2000. Available at: https://www.ncjrs.gov/pdffiles1/nij/181942.pdf.

133. Perhaps the most compelling argument against using ineffective assistance of counsel claims as the measure of the adequacy of a right to counsel system comes from a September 2010 report by the Innocence Project. That report states that one out of every five people exonerated through DNA evidence had filed IAC claims against their lawyers, and yet the reviewing courts rejected 81% of those claims. If factually innocent people cannot win IAC claims, what chance does that leave everyone else who has no chance of DNA evidence coming to their rescue?

134. Strickland v. Washington, 466 U.S. 668 (1984). Available at: http://www.oyez.org/cases/1980-1989/1983/1983_82_1554.

135. United States v. Cronic, 466 U.S. 648 (1984). Available at: http://supreme.justia.com/cases/federal/ us/466/648/.

136. Ibid.

137. Ibid.

138. Ibid.

139. On the same day that Gideon was decided, the Warren Court also mandated, in Douglas v. California, 372 U.S. 353 (1963), that states must provide lawyers during the first stage of the appeals process – the court hearing where a defendant may ask a court to set aside a trial verdict or imposed sentence - noting that “there can be no equal justice where the kind of an appeal a man enjoys depends on the amount of money he has.”

140. Four years after Gideon, the Court again picked up the theme of potential government tyranny, this time in relation to children facing juvenile delinquency charges. “Due process of law is the primary and indispensable foundation of individual freedom. It is the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise,” the Court asserted in In re Gault, 387 U.S. 1 (1967), determining that children too were entitled to a lawyer. To underscore the point that children needed more protections than adults, not less, the Court famously added; “[u]nder our Con- stitution, the condition of being a boy does not justify a kangaroo court.”

141. The 1972 decision in Argersinger v. Hamlin, 407 U.S. 25 (1972), may have had the greatest impact on criminal justice systems in America. The Court’s Gideon decision had only expressly applied to felony cases. Because of the utterly massive volume of misdemeanor cases charged every year, the lower trial courts hearing those cases had developed “an obsession for speedy dispositions, regardless of the fairness of the result.” And without publicly available lawyers to assist accused persons in their defense, misdemeanor courts became places of “futility and failure” rather than justice. “We are by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more,” the Court declared in Argers- inger as it expressly extended the right to counsel to misdemeanor cases.

142. Rather than spend public funds on attorneys in misdemeanor cases, many jurisdictions throughout the country America decided that the Argersinger mandate could be avoided. If the threat of jail time were not made imminent, perhaps the Sixth Amendment right to counsel no longer applied. A “suspended sentence” is a jail term that a judge delays imposing upon a guilty defendant, while ordering the defendant to serve a period of probation or fulfill some set of conditions. The defendant only goes to jail if they fail to meet the terms of the probation or conditions. Some jurisdictions would tell defendants they were only facing a suspended sentence and thus were not entitled to a lawyer. Of course without the aid of counsel, the conditions of probation were often so restrictive as to make it almost impossible to comply. So in 2002, the U.S. Supreme Court took up the issue of, “Where the State provides no counsel to an indigent defendant, does the Sixth Amendment

Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future 43 IDC 65/124 03/22/2013 permit activation of a suspended sentence upon the defendant’s violation of the terms of probation?” The Court concluded in Shelton v. Alabama, 535 U.S. 645 (2002), that it does not and required that states provide access to effective representation even in those cases where the trial judge does not intend to impose a jail sentence right away.

143. By far the largest majority of criminal cases will never make it to trial, and instead they will be resolved much earlier through pleas. But in the plea-bargaining process, the judge is not bound to impose the sentence negotiated between the prosecution and defense. For many years, states and counties would not provide lawyers to poor people who pled guilty to a crime but who then wanted to appeal the judge’s sentence imposed pursuant to that guilty plea. In Halbert v. Michigan, 545 U.S. 605 (2005), the Roberts Court determined that to be improper. Recognizing that the majority of people facing criminal charges are indigent and that most people in prison are undereducated, mentally-ill, or both, the Court reasoned that “[n]avigating the appellate process without a lawyer’s assistance is a perilous endeavor for a layperson, and well beyond the competence of individuals, like Halbert, who have little education, learning disabilities, and mental impair- ments.”

144. Most people familiar with crime dramas know that when you are arrested you have the right to remain silent and to have counsel appointed for police interrogations. These are your so-called “Miranda” rights established in the landmark 1966 case of Miranda v. Arizona, 384 U.S. 436 (1966).

145. A year after Miranda, the Court also made attorneys available to those in police line-ups in United States v. Wade, 388 U.S. 218 (1967).

146. A “preliminary hearing” is the point when the prosecution must establish probable cause that a crime has likely been committed and that the defendant likely did it. In 1970, the U.S. Supreme Court made clear that a defendant has the right to public counsel at preliminary hearings in Coleman v. Alabama, 399 U.S. 1 (1970).

147. Usually plea negotiations occur to determine whether the case can be settled without a trial. Brady v. United States, 397 U.S. 742, 748 (1970), established the right to an attorney during plea negotiations.

148. Rothgery v. Gillespie County, 554 U.S. 191, ___; 07-440, at p.6 (2008).

149. Id. at p.20.

150. Id, at pp. 5-6.

151. Id. at p.15.

152. Id. at p.9.

153. McMann v. Richardson, 397 U.S. 759 (1970).

154. 30 U.S. 1473 (2010).

155. Missouri v. Frye, 10-444, 566 U.S. ___ (03/21/2012); Lafler v. Cooper, 10-209, 566 U.S. ___ (03/21/2012).

44 Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future IDC 66/124 03/22/2013 IDC 67/124 03/22/2013